Hardin v. Rowland et al

Filing 41

REPORT AND RECOMMENDATION: For the reasons set forth herein, the undersigned recommends this action be DISMISSED WITHOUT PREJUDICE in accordance with Rule 41 of the Federal Rules of Civil Procedure and Local Rules of Court. Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14) days from receipt of this Report and Recommendation in which to file any written objections to this Recommendation with the District Court. Signed by Magistrate Judge Jeffery S. Frensley on 1/12/2022. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ln)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
COLUMBIA DIVISION
CORTEZ HARDIN, SR.
Plaintiffs,
v.
BUCKY ROWLAND, et al.
Defendants.

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Civil No. 1:17-cv-0097
Judge Campbell/Frensley

REPORT AND RECOMMENDATION
BACKGROUND
By Order dated April 18, 2018 (Docket No. 12), the Court referred this prisoner civil rights
action to the magistrate judge for pretrial proceedings under 28 U.S.C. §§ 636(b)(1)(A) and (B),
Rule 72(b) of the Federal Rules of Civil Procedure and the Local Rules of Court.
Cortez Hardin, Sr. (“Plaintiff”) brought this action as a pretrial detainee in custody of the
Maury County Jail in Columbia, Tennessee against numerous Defendants under 42 U. S. C. §1983
alleging violation of this civil rights. Docket No. 1. Upon initial review, the Court found that the
Plaintiff’s Complaint states a colorable Fourteenth Amendment excessive force claim under 42
U.S.C. § 1983 against then unidentified Maury County Jail officers and Columbia Police
Department officers in their individual capacities. Docket No. 11. The Plaintiff’s remaining claims
were dismissed. Id. The Plaintiff thereafter filed an Amended Complaint identifying several
individuals and process issued. Docket Nos. 14, 15.
In light of the Plaintiff’s underlying criminal charges proceeding in state court, this case
was administratively closed pending the resolution of the Plaintiff’s state criminal charges. Docket
No. 26. Following the resolution of those charges, the case was reopened on April 13, 2021. Docket

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No. 33. The Court granted a motion to dismiss as to Defendants Barber and Nagel on July 14,
2021. Docket No. 39. In the Order granting the motion to dismiss, the Court noted that pleadings
that were sent the Plaintiff’s address of record had been returned as undeliverable. Id. A copy of
that order was also returned as undeliverable. Docket No. 40.
LAW AND ANALYSIS
A.

Legal Standard.

Federal Rule of Civil Procedure 41(b) “confers on district courts the authority to dismiss
an action for failure of a Plaintiff to prosecute the claim or comply with the Rules or any order of
the Court. Schafer v. City of Defiance Police Department, 529 F. 3d 731, 736 (6th Cir. 2008)(citing
Knoll v. AT & T, 176 F. 3d 359, 362-3 (6th Cir. 1999)); Carpenter v. City of Flint, 723 F. 3d 700,
704 (6th Cir. 2013)(“It is well settled that a district court has the authority to dismiss sua sponte a
lawsuit for failure to prosecute.”). Similarly, this Court’s Local Rules provides that “[c]ivil suits
that have been pending for an unreasonable period of time without any action having been taken
by any party may be summarily dismissed . . . without prejudice to refile or to move the Court to
set aside the order of dismissal for just cause.” Local Rule 41.01(a)(dismissal for unreasonable
delay. Dismissal for failure to prosecute is a tool for district courts to manage their dockets and
avoid unnecessary burdens on opposing parties and the judiciary. See Schafer, 529 F. 3d at 736
(quoting Knoll, 176 F. 3d at 363).
The Court considers four factors in determining whether dismissal under Rule 41(b) is
appropriate: (1) the willfulness, bad faith, or fault of the plaintiff; (2) whether the opposing party
has been prejudiced by the plaintiff’s conduct; (3) whether the plaintiff was warned that failure to
cooperate could lead to dismissal; and (4) the availability and appropriateness of other, less drastic
sanctions. Schafer v. City of Defiance Police Dep’t, 529 F. 3d 731, 737 (6th Cir. 2008). A

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dismissal for failure to prosecute under Rule 41(b) constitutes an adjudication on the merits unless
the dismissal order states otherwise. Fed. R. Civ. P. 41(b). The Court of Appeals for the Sixth
Circuit has noted, however, that dismissal under Rule 41(b) is a “harsh sanction” and should only
apply in extreme situations where there is a “clear record of delay or contumacious conduct by the
plaintiff.” Carter, 636 F. 2d at 161, quoting Silas v. Sears, Roebuck & Co., Inc., 586 F. 2d 382,
385 (5th Cir. 1978).
Rule 41(b) of the Federal Rules of Civil Procedure authorizes the involuntary dismissal of
an action if a Plaintiff fails to prosecute or to comply with an order of the Court. See, Jourdan v.
Jabe, 951 F. 2d 108, 109 (6th Cir., 1991). “[W]hile pro se litigants may be granted some latitude
when dealing with sophisticated legal issues, acknowledging their lack of formal training, there is
no cause for extending this margin to straightforward procedural requirements that a lay person
can comprehend as easily as a lawyer.” Id. “[T]he lenient treatment of pro se litigants has limits.”
Pilgrim v. Littlefield, 92 F. 3d 413, 416 (6th Cir. 1996).
When a pro se litigant fails to comply with an easily understood court-imposed deadline,
there is no basis for treating that party more favorably than a party who is represented. Id.
Additionally, Courts have an inherent power “acting on their own initiative, to clear their calendars
of cases that have remained dormant because of inaction or dilatoriness of the party seeking relief.”
Link v. Wabash Railroad Co., 370 U. S. 626, 630 (1962).
This is not a case of a plaintiff simply filing documents past deadlines or filing inadequate
briefs. See Mulbah v. Detroit Bd. of Educ., 261 F. 3d 586, 593-94 (6th Cir. 2001) (finding that
the district court abused its discretion by granting a motion to dismiss for failure to prosecute).
Giving due consideration to each of the factors, the Court finds that dismissal for failure to
prosecute is an appropriate and necessary sanction, as no alternative sanction “would protect the

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integrity of pre-trial procedures.” Carter v. City of Memphis, 636 F. 2d 159, 161 (6th Cir. 1980).
B.

The Case at Bar

The undersigned finds that dismissal under Rule 41(b) of the Federal Rules of Civil
Procedure is appropriate because the four relevant factors, considered under the “relaxed” standard
for dismissal without prejudice show a record of delay, refusal to advance the case and failure to
comply with the Court’s orders by the Plaintiffs.
1.

Bad Faith, Willfulness, or Fault

A plaintiff’s actions demonstrate bad faith, willfulness, or fault where they “display either
an intent to thwart judicial proceedings or a reckless disregard for the effect of [plaintiff’s] conduct
on those proceedings.” Wu v. T.W. Wang, Inc., 420 F. 3d 641, 643 (6th Cir. 2005) (quoting Mulbah,
261 F. 3d at 591(6th Cir 2001)). After the case was reopened, Defendants Barber and Nagel filed a
motion to dismiss. Docket No. 34. The Plaintiff did not respond to the motion to dismiss. Although
there is no indication that the Plaintiffs’ failure to file a response to the defendants’ motion to
dismiss was driven by bad faith, they are still “at fault for failing to comply with the Court’s Order[
].” Malott v. Haas, 2017 WL 1319839, at *2 (E.D. Mich. Feb. 8, 2017), report and recommendation
adopted by 2017 WL 1244991 (E.D. Mich. Apr. 5, 2017); see id. (finding that first factor weighed
in favor of dismissal where plaintiff had failed to respond to the defendants’ summary judgment
motion, despite receiving additional time to do so, and had failed to respond to the court’s showcause orders). Plaintiff’s failure to respond to the motion to dismiss suggests he did not wish to
pursue this action. This factor weighs in favor of dismissal.
2.

Prejudice

The Sixth Circuit has held that “[a] defendant is prejudiced by a plaintiff’s dilatory conduct
if the defendant is ‘required to waste time, money, and effort in pursuit of cooperation which [the

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plaintiff] was legally obligated to provide.’” Carpenter, 723 F. 3d at 707 (second alteration in
original) (quoting Harmon v. CSX Transp., Inc., 110 F. 3d 364, 368 (6th Cir. 1997)); see also
Schafer, 529 F. 3d at 739 (same). Such prejudice typically arises in the discovery context. See,
e.g., Harmon, 110 F. 3d at 368 (finding prejudice where plaintiff failed to respond to defendant’s
interrogatories and a related motion to compel); Wright v. City of Germantown, 2013 WL 1729105,
at *2 (W. D. Tenn. Apr. 22, 2013) (finding prejudice where defendant “expended time and money
pursuing [plaintiff’s] required initial disclosures and deposition testimony”). Notably, time and
effort spent on “typical steps in the early stages of litigation[,]” such as answering a complaint or
filing pretrial motions to advance the defendant’s position, are not actions “necessitated by any
lack of cooperation” and therefore do not weigh in favor of dismissal for failure to prosecute.
Schafer, 529 F. 3d at 739. The Sixth Circuit explained in Schafer v. City of Defiance Police
Department that “[i]f such efforts . . . [were] alone sufficient to establish prejudice,” for the purpose
of Rule 41(b), “then every defendant who answers a complaint and responds minimally to a lawsuit
would be able to claim prejudice[,]” a “result [that] would defy common sense.” 529 F. 3d at 740.
Here, there is no indication that the defendants wasted substantial time, money, or effort
due to a lack of cooperation from Plaintiff. However, the Plaintiff’s failure to take any steps to
advance the litigation does prejudice the Defendants. All parties are entitled to a just and prompt
resolution of their cases. The failure to advance litigation, as the Plaintiff has here, prejudices the
parties and reflects the type of situation where the Court should intervene. Thus, this factor weighs
in favor of dismissal.
3.

Prior Notice

Whether a party was warned that failure to cooperate could lead to dismissal “is a ‘key
consideration’” in the Rule 41(b) analysis. Schafer, 529 F. 3d at 740 (quoting Stough, 138 F. 3d at

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615). The Plaintiff was advised of his obligation to exercise due diligence to take discovery and
conduct reasonable investigations into this matter. Docket No. 12. He was further advised of the
need to keep the clerk’s office apprised of his current address and that his failure to do so could
jeopardize the prosecution of this action. Id. As a result, Plaintiff was on notice of the need for him
to cooperate in the proceedings and update his address. He nonetheless failed to do so. This factor
weighs in favor of dismissal.
4.

Appropriateness of Other Sanctions

The less-drastic sanction of dismissal without prejudice is available and appropriate here.
Dismissal without prejudice balances the Court’s interest in “sound judicial case and docket
management” with “the public policy interest in the disposition of cases on their merits.” Muncy,
110 F. App’x at 557 n. 5; see also Mulbah, 261 F. 3d at 590–91. Such a sanction is particularly
appropriate in cases of prolonged inactivity and where, as here, the plaintiff appears pro se. See
Schafer, 529 F. 3d at 737 (noting that courts apply the four-factor test “more stringently in cases
where the plaintiff’s attorney’s conduct is responsible for the dismissal.” Id. (quoting Harmon, 110
F. 3d at 367)).
This action was reopened on April 13, 2021. Docket No. 33. The Plaintiff has not filed any
pleadings in this matter or taken any action to advance this litigation since this matter was
reopened. In fact, the docket sheet reflects that the Plaintiff has not filed any pleadings in this
action since filing his Amended Complaint on April 25, 2018. Docket No. 14. Further, the most
recent pleadings in this matter have all been returned to the Court as undeliverable and Plaintiff
has taken no action to update his address with the Court.
The Court has considered the factors regarding dismissal for failure to prosecute and finds
that they are all applicable in this case. The Plaintiff has taken no action to prosecute this case has

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not filed any pleadings with the Court since April 2018 and has failed to keep the Court apprised
of his address.
For the reasons set forth herein, the undersigned recommends this action be DISMISSED
WITHOUT PREJUDICE in accordance with Rule 41 of the Federal Rules of Civil Procedure
and Local Rules of Court.1
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14) days
from receipt of this Report and Recommendation in which to file any written objections to this
Recommendation with the District Court. Any party opposing said objections shall have fourteen
(14) days from receipt of any objections filed in this Report in which to file any response to said
objections. Failure to file specific objections within fourteen (14) days of receipt of this Report
and Recommendation can constitute a waiver of further appeal of this Recommendation. Thomas
v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985), reh’g denied, 474 U.S. 1111 (1986).

JEFFERY S. FRENSLEY
United States Magistrate Judge

1

This Report and Recommendation provides notice to Plaintiff of the Court’s intention to sua
sponte dismiss the action, and the fourteen-day period for filing objections provides him with the
opportunity to show good cause why the action should not be dismissed.
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