Shrum et al v. Riker et al

Filing 85

REPORT AND RECOMMENDATION: The Magistrate Judge recommends that the present trial date of February 5, 2013, be canceled and this case be DISMISSED with prejudice. Signed by Magistrate Judge Joe Brown on 12/18/2012. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JAMES SHRUM,

)
)
)
)
)
)
)
)
)

Plaintiff
v.
ADRIEL RIKER and SONYA TROUTT,
Defendants
TO:

No. 3:11-0938
Judge Trauger/Brown
Jury Demand

THE HONORABLE ALETA A. TRAUGER
REPORT AND RECOMMENDATION
A final pretrial conference was set in this case for

December 17, 2012, at 11:00 a.m.
for the Defendants appeared.
For

the

reasons

At the appointed hour attorneys

However, Mr. Shrum did not appear.
stated

below

the

Magistrate

Judge

recommends that this case be DISMISSED with prejudice for the
failure of the Plaintiff to prosecute and to obey Court orders.
BACKGROUND
The

Plaintiff

Shrum,

along

with

another

Plaintiff

Malcolm, filed this case on October 3, 2011 (Docket Entry 1).

the

Plaintiffs alleged that they were sprayed with a chemical agent
freeze without provocation on September 26, 2011.

They alleged

that this incident began because of a stopped up toilet, which the
guards blamed them for.

They alleged that the argument escalated

until the guards sprayed them with freeze while they were locked
down in their cell behind a steel door where they could in no way
inflict harm to any inmate or guard.

The case was given an initial review under 28 U.S.C. §
1915(a) and 28 U.S.C. § 1915(A)(b).

As a result of this initial

review the case was allowed to proceed in forma pauperis (Docket
Entry 11).
The

Magistrate

Judge

scheduled

a

case

management

conference in the matter for March 12, 2012 (Docket Entry 27).
Mail

sent

to

Plaintiff

Shrum

was

initially

returned

as

deliverable, unable to forward (Docket Entry 31 and 32).

not
The

Defendants notified the Court that they believed Plaintiff Shrum
was no longer housed at the Sumner County jail and that he had been
transferred to the Jackson County jail (Docket Entry 33). Based on
this information from the Defendants, a case management conference
was held on March 12, 2012 (Docket Entry 43). The Plaintiffs were
allowed to file an amended complaint, which went into more detail
about their allegations.
The Magistrate Judge expressed some concern that their
signatures appeared to change from document to document, although
both Plaintiffs stated that they in fact signed their names where
indicated, and the difference in appearance was simply because of
the pen they were using or the amount of time within which they had
to sign.

It was noted that the Plaintiffs were now in different

jails and there would be some delay in filing their pleadings
because of the necessity for both Plaintiffs to sign.

2

The Plaintiffs were specifically told that they were
required to keep both the Court and opposing parties informed of
their current addresses, and that their failure to keep the Court
informed

of

their

recommendation

that

current
the

addresses

action

be

could

dismissed

result
for

in

a

failure

to

prosecute and from failure to comply with the Court’s orders.
Following this case management hearing and scheduling
order this matter was set for a jury trial for March 5, 2013, and
the

undersigned

was

directed

to

conduct

the

final

pretrial

conference and enter a pretrial order (Docket Entry 46).
Subsequently, there was a motion to dismiss Plaintiff
Joseph

Malcolm’s

case

because

of

failure

administrative remedies (Docket Entry 53).

to

exhaust

his

The Magistrate Judge

recommended that this motion be granted (Docket Entry 56), and
Plaintiff Malcolm’s claims were dismissed without prejudice for
failure to exhaust administrative remedies (Docket Entry 60).
The Magistrate Judge next set a telephone conference for
June 21, 2012 (Docket Entry 64).

As a result of this telephone

conference

counsel

with

the

Defendants’

and

Plaintiff

Shrum,

discovery and dispositive motion deadlines were extended (Docket
Entry 66).
The parties apparently undertook discovery (Docket Entry
71).

The Magistrate Judge set the final pretrial conference for

11:00 a.m. on December 17, 2012 (Docket Entry 74).

3

The Magistrate

Judge also ordered the Plaintiff Shrum produced for the hearing
(Docket Entry 76).
the

jail

in

Unfortunately, mail sent to Plaintiff Shrum at

Jackson

County

in

November

was

returned

as

undeliverable (Docket Entries 77, 79, 81, 82).
As a result of the order to produce, Captain Gillihan,
the Jackson County Jail Administrator, advised the Court that
Plaintiff Shrum was released to the streets on October 29, 2012,
upon the expiration of his sentence (Docket Entry 83).

Plaintiff

Shrum did not appear for the final pretrial conference and the
Court has had no contact with him concerning a change of address.
The counsel for the Defendants at the hearing on December 17, 2012,
advised that they had no information about Plaintiff Shrum’s
whereabouts and had not had any contact with him since his release.
LEGAL DISCUSSION
A court must be able to control its docket and its orders
must be obeyed. A dismissal with or without prejudice is a drastic
remedy, and before the Court contemplates dismissing an action
under Rule 41(b), the Court must specifically consider:
(1) whether the party’s failure to cooperate is due to
willfulness, bad faith, or fault; (2) whether the
adversary was prejudiced by the dilatory conduct of the
party; (3) whether the dismissed party was warned that
failure to cooperate could lead to dismissal; and (4)
where the less drastic sanctions were imposed or
considered before dismissal was granted. Tetro v. Elliott
Popham Pontiac, 173 F.3d 988 (6th Cir. 1999).

4

In this case the Plaintiff was warned that failure to keep a
current address could lead to dismissal of his case (Docket Entry
43).
The Defendants in this matter are prejudiced because,
although they appeared at the final pretrial conference, the
Plaintiff did not and thus a final pretrial order cannot be entered
and the Defendants have no way to know whether they should continue
to expend money in preparation for the upcoming trial.
Given the fact that the Defendant was released at the end
of October, and now some six weeks later he has failed to have any
contact with the Court, the Magistrate Judge can only conclude that
his failure to cooperate is due to willfulness, bad faith, or
fault.
The
sanctions.

Magistrate

Judge

has

considered

less

drastic

However, given an upcoming trial date and the total

failure of the Plaintiff to contact the Court in any fashion,
essentially precludes the Magistrate and District Judges from
taking any action other than indefinitely continuing the trial
until the Plaintiff is heard from again. The Magistrate Judge does
not believe that this is a realistic alternative.

The Court must

be able to control its docket and move its cases forward.

The

Defendants should not be put in the position of having to prepare
for a trial where the Plaintiff has given no indication that he
will appear.

5

Accordingly, the Magistrate Judge recommends that the
present trial date of February 5, 2013, be canceled and this case
be DISMISSED with prejudice.
RECOMMENDATION
As stated above, the Magistrate Judge recommends that
this case be dismissed with prejudice.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any

party

has

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 14 days from receipt of any objections filed
in this Report in which to file any responses to said objections.
Failure to file specific objections within 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).
ENTERED this 18th day of December, 2012.
/s/ Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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