Larkin v. Corrections Corporation of America et al

Filing 62

REPORT AND RECOMMENDATION: Magistrate Judge Brown recommends that this case be DISMISSED without prejudice for failure to prosecute and to follow Court orders. Signed by Magistrate Judge Joe Brown on 4/24/14. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
MARK LARKIN,
Plaintiff
v.
CORRECTIONS CORPORATION
OF AMERICA, et al.,
Defendants
TO:

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No. 3:13-CV-1369
Judge Campbell/Brown

THE HONORABLE TODD J. CAMPBELL
REPORT AND RECOMMENDATION
For

the

reasons

stated

below

the

Magistrate

Judge

recommends that the Plaintiff’s case be DISMISSED without prejudice
for failure to prosecute and to obey court orders.
BACKGROUND
The Plaintiff filed his complaint on October 23, 2013, in
forma pauperis (Docket Entry 1). Subsequently, the Plaintiff’s
motion to proceed in forma pauperis was granted and he was directed
to return service packets for the remaining Defendants in the case
and the matter was referred to the undersigned for case management
and a report and recommendation as to any dispositive matters
(Docket Entry 11). Judge Campbell, in that same order, specifically
forewarned the Plaintiff that his prosecution of the action would be
jeopardized should he fail to keep the Clerk’s office informed of
his current address.
The Plaintiff was initially active in following up on his
case by returning the service packets to the Clerk’s office on
December 13, 2013, and by filing a motion for injunctive relief

(Docket Entry 15) and by initiating discovery (Docket Entry 19), and
a motion to ascertain the status of his case on January 13, 2014
(Docket Entry 25). On January 14, 2014, the Magistrate Judge entered
an order denying as moot the Plaintiff’s motion for emergency
injunctive relief, notifying the Plaintiff that as soon as the last
remaining Defendant (Molokwu) had been served the Magistrate Judge
would schedule a Rule 16 hearing for the purpose of entering the
scheduling order (Docket Entry 27).
The Plaintiff filed a notice of appeal as to the District
Judge’s order dismissing certain of the Defendants (Docket Entry 31)
on December 19, 2013.1
It appears that sometime prior to February 1, 2014, the
Plaintiff was released from the Davidson County Detention Facility
and mail sent to him at his last known address at the facility was
returned (Docket Entries 51 and 52).
A copy of the Court’s order was subsequently sent to the
Plaintiff at an address in Creston, Iowa. This certified mail was
signed by Leta Larkin on February 7, 2014 (Docket Entry 53). On
February 19, 2014, the Magistrate Judge entered an order directing
the Plaintiff to show by March 19, 2014, why the Magistrate Judge
should not recommend dismissal as to the Defendant Molokwu and
further

setting

the

matter

for

a

case

management

scheduling

conference on April 23, 2014. On January 31, 2014, the Magistrate
Judge entered an order noting that the Defendants had advised the
Court that the Plaintiff had been released from custody on January

1

The Sixth Circuit subsequently dismissed the appeal for lack of
appellate jurisdiction as there was no final judgment entered by the
District Judge (Docket Entry 60).

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20, 2014 (Docket Entry 48). The Clerk was directed to send a number
of orders to the new addresses. The Plaintiff was specifically
cautioned that he must keep a current address on file with the Court
and failure to do so could result in a recommendation that his case
be dismissed for failure to prosecute (Docket Entry 49).
The Plaintiff was again on February 19, 2014 specifically
reminded that it was his responsibility to keep a current address on
file with the court at all times and that failure to do so could
result in a recommendation that his case be dismissed for failure to
prosecute and failure to obey Court orders (Docket Entry 55).
Pursuant to that order the Defendants prepared a proposed
case management order and filed it with the Court (Docket Entry 61).
A certificate of service shows that they sent the proposed case
management order to the Plaintiff at the detention facility at the
Elm Hill Pike address and to the Creston, Iowa, address.
At the appointed time on April 23, 2014, counsel for the
Defendants appeared at the hearing, but the Plaintiff did not
appear. Defendants’ counsel advised that they had been using all
three addresses for the Plaintiff and they had received no response
from him as to any of the pleadings.
In this case, as discussed above, the Plaintiff has been
repeatedly cautioned that he needed to keep a current address on
file and that failure to do so can result in the dismissal of his
case for failure to prosecute.
It appears that at least one order was signed for by an
individual with the last name of Larkin at the address provided by
the Defendants in Iowa.

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The record, however, is totally void of any communication
from the Plaintiff about his case or about a current address since
the end of January 2014.
LEGAL DISCUSSION
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).
In this case the Plaintiff was warned at the outset of the
case that failure to keep a current address could lead to dismissal
of his case (Docket Entry 11).
Given these circumstances, the Magistrate Judge believes
that dismissal under Rule 41(b) is appropriate. The Court must be
able to control its docket and move cases toward resolution. The
Plaintiff is presently out of touch with the Court, has failed to
respond to motions to show cause, or to attend the case management
conference. Under these circumstances, the Magistrate Judge believes
that the elements of Tetro case cited above have been met:
(1)

The Plaintiff has been warned repeatedly of the

necessity of keeping the current address on file with the Court and
it appears that his failure to do so is due to willfulness, bad
faith or fault.

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(2)

The Defendants in this case cannot proceed with

discovery without the Plaintiff’s participation and as time goes on
their defenses may well be prejudiced.
(3)

The Plaintiff has been repeatedly warned that failure

to keep a current address and to prosecute his case could lead to
dismissal.
(4)

The Magistrate Judge has considered less drastic

sanctions and is only recommending that the case be dismissed
without

prejudice,

which

is

less

drastic

than

dismissal

with

prejudice.
RECOMMENDATION
For the reasons stated above, the undersigned recommends
that

this

case

be

DISMISSED

without

prejudice

for

failure

to

prosecute and to follow Court orders.
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 23rd day of April, 2014.
/s/
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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