Harbison v. Thompson
MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 1/30/17. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(af)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
EDWARD JEROME HARBISON,
EVELYN THOMPSON et al.,
The plaintiff, Edward Jerome Harbison, is presently incarcerated at the Riverbend
Maximum Security Institution in Nashville, TN. Before the court is the plaintiff’s response to
the order to show cause issued by the magistrate judge.
In order to ensure the prompt resolution of this matter, the court will vacate the referral to
the magistrate judge and considers the plaintiff’s response to the order to show cause (ECF Nos.
Additionally, because the plaintiff timely responded to the magistrate judge’s order to
show cause, the court will discharge the order to show cause. However, because the plaintiff has
failed to diligently prosecute this action, it will be dismissed.
FACTS AND PROCEDURAL HISTORY
On August 27, 2013, the plaintiff initiated this action by filing a motion for preliminary
injunction. (ECF No. 1.) Because Plaintiff had not paid the filing fee or applied to proceed in
forma pauperis and because he had not filed a Complaint, the court ordered the plaintiff to
correct these omissions. (ECF No. 2). The plaintiff sought more time to comply with the court’s
order, which the court granted. (ECF Nos. 5-6.) On December 4, 2013, the plaintiff filed an
Amended Complaint1 and an application to proceed in forma pauperis. (ECF Nos. 10-11.) In
the course of considering the plaintiff’s application to proceed in forma pauperis, the court
ascertained that the plaintiff was prohibited from proceeding in forma pauperis because he had
three-strikes under 28 U.S.C. 1915(g) and because the allegations in plaintiff’s Cmplaint did not
satisfy the “imminent-danger” exception to the three-strikes rule.
Id. Accordingly, the court
ordered the plaintiff to pay the civil action filing fee within 30 days and warned the plaintiff that
failure to do so would result in the dismissal of this action for failure to prosecute. (ECF No.
14.) After receiving additional time to do so, the plaintiff paid the $400 filing fee on February
(ECF No. 18-19, 23.)
Thereafter, the court referred this case to the assigned
magistrate judge for further proceedings.
After receiving authorization from the magistrate judge to do so, on May 14, 2014, the
plaintiff filed another Amended Complaint, the operative pleading in this action, in which he
named nine defendants: Derrick D. Schofield, Commissioner of the Tennessee Department of
Corrections (“TDOC”); Benjamin F. Bean, Correctional Program Manager Inmate Grievances
and Disciplinary Appeals; Charles Wayne Carpenter, Warden RMSI;
Tony Mays, Deputy
Warden RMSI; William Smith, RMSI Inmate Job and Classification Coordinator; Michael
Bryant, RMSI Education Supervisor; Gregory Leonard, RMSI Grievance Chairperson; Evelyn
Thompson, RMSI Clerical Correctional Officer. (ECF No. 17, 19, 32.)
The gist of the
Although it is unclear why, on December 5, 2013, the plaintiff filed a partial Amended
Complaint. (ECF No. 13.)
plaintiff’s Amended Complaint is that he was wrongfully deprived of his position as a law
library aide, a position which, the plaintiff alleges, required him to: (1) assist in preparing civil or
criminal cases using general knowledge of reference books, material and indexes; (2) assist in
preparing legal documents and writs; (3) investigate facts and law of cases; and (4) assist in
preparing legal forms. (ECF No. 32 at Page ID# 156.) In addition to the Amended Complaint,
the plaintiff filed a motion to appoint counsel, along with a memorandum in support of the
motion, seven sworn affidavits and summonses for each defendant to be issued by the Clerk of
Court. (ECF Nos. 33-43.) Each of the summonses prepared by the plaintiff, issued by the Clerk
of Court and then sent back to the plaintiff so that he could serve the defendants—contained the
following statement: “[i]f you fail to respond, judgment by default will be entered against you
for the relief demanded in the complaint.” (ECF No. 43.) On May 16, 2014, the magistrate
judge denied the plaintiff’s motion to appoint counsel. (ECF No. 44.) The plaintiff filed a
response in opposition to the magistrate judge’s decision, which the court construed as objections
to the magistrate judge’s order and overruled. (ECF Nos. 47, 51.)
On June 9, 2014, defendant Bean filed a pro se motion for extension of time to respond to
the Amended Complaint, which the magistrate judge granted. (ECF Nos. 48-49.)
On June 19, 2014, the plaintiff filed a motion to supplement his motion for appointment
of counsel. (ECF No. 57.) On June 27, 2014, the plaintiff filed a motion in which he advised the
court that, on June 2, 2014, defendant Gregory Leonard “made threats to Plaintiff about sending
him pleadings, the Plaintiff forwarded his copy to the Clerk’s Office with a self-addressed
envelope to show that his copy was stamped as filed and [to] be sent back to Defendant, Gregory
Leonard.” (ECF No. 58 at Page ID# 552.) That same day, the plaintiff filed two additional
motions—a motion seeking to voluntarily dismiss defendants Mays and Andrews,2 and a motion
alerting the court to issues the plaintiff was having obtaining postage for legal mail. (ECF Nos.
On June 30, 2014, defendant Charles Carpenter filed a pro se motion for extension of time to
file an answer, which the magistrate judge granted. (ECF Nos. 61-62.)
On July 9, 2014, the plaintiff filed a motion alerting the court to the fact that, although
defendants Bean and Carpenter had sought extensions of time to answer the Complaint, they
never responded to the plaintiff’s notice of “Waiving Service of Summons.”3 (ECF No. 67.)
Additionally, the plaintiff noted that none of the other defendants had made an appearance or
responded to plaintiff’s notice of “Waiving Service of Summons,” despite the fact that the
plaintiff had provided each defendant with a self-addressed, stamped envelope. (Id.)
the plaintiff advised the court that he would be sending a second notice to these defendants. (Id.)
Plaintiff filed with the court, and appears to have served all defendants with, his typewritten
version of the court’s form AO 399, “Waiver of the Service of Summons.” (ECF No. 72.)
Notably, the document the plaintiff prepared (and the court’s AO 399 form) contain the
following statement: “[i]f I fail [to respond within the time allowed], a default judgment will be
entered against me.” (Id. at Page ID# 611.)
Andrews was identified as a defendant in an earlier version of the plaintiff’s Complaint, but by
the time he filed the Amended Complaint on May 14, 2014, which is the operative pleading in
this action, Andrews was no longer identified as a defendant.
The plaintiff, apparently, created a document, which appears to be a hybrid of the court’s form
Summons (AO 440) and the court’s form Waiver of the Service of Summons (AO 399), with the
plaintiff’s personal additions. Notably, this document contains the following statements: “[i]f
you do not return the signed waiver within the time indicated, I will arrange to have the
summons served on you, since [you] have already received the complaint. And[,] I will ask the
court to require you, or the entity you represent, to pay the expenses of making service.” (ECF
On July 14, 2014, defendants Bean and Carpenter filed a motion to dismiss. (ECF Nos.
On July 16, 2014, the plaintiff filed a motion alerting the court to an error in his waiver of
service document and explaining that he had corrected the error. (ECF No. 77.) 4 On July 23,
2014, plaintiff submitted a letter to the court seeking a copy of the case docket. (ECF No. 78.)
On July 31, 2014, the plaintiff filed an opposition to the motion to dismiss. (ECF Nos. 79-80.)
On August 4, 2014, he filed two supplemental documents in support of his opposition (ECF Nos.
80-81) and on August 6, 2014, he filed yet two more supplements in support of his opposition to
the motion to dismiss (ECF Nos. 82, 84.)
Defendants Carpenter and Bean sought permission to file a reply to the plaintiff’s many
filings in opposition to their motion, which was granted by the magistrate judge. (ECF Nos. 83,
86.) On August 8, 2014, defendants Bean and Carpenter filed their reply. (ECF No. 87.) On
August 12, 2014, the plaintiff filed four documents related to defendants’ motion to dismiss and
this litigation. (ECF Nos. 89-92.) From August 26, 2014 through November 12, 2014, the
parties filed additional briefing regarding the motion to dismiss filed by defendants Bean and
Carpenter. (ECF Nos. 94, 98, 100, 102-104.)
On February 5, 2015, the magistrate judge issued a report and recommendation granting
the pending motion to dismiss. (ECF No. 114.) On February 23, 2015, the plaintiff filed his
objections to the report and recommendation. (ECF No. 126.) On March 10, 2015, the court
issued a memorandum opinion and order, overruling the plaintiff’s objections, accepting the
Based on the information in the plaintiff’s proof of service, as of July 16, 2014, all defendants
appear to still be employed by TDOC either at RMSI or at TDOC headquarters.
report and recommendation, and dismissing defendants Bean and Carpenter from the case. (ECF
For more than 16 months, from March 10, 2015 until July 29, 2016, the plaintiff did not
file a single document or, apparently, advance this case in any way.
On July 29, 2016, the magistrate judge issued an order to show cause why this action
should not be dismissed for failure to prosecute. (ECF No. 131.) On August 17, 2016, the
plaintiff timely responded to the magistrate judge’s order to show cause. (ECF Nos. 134-138.)
In his response, the plaintiff asserts that this matter should not be dismissed because of “acts by
defendant Gregory Leonard that dictated verbal threats not to send him any more legal
pleadings,” because defendants Thompson and Schofield are no longer TDOC or RMSI
employees, because defendant Leonard was promoted to Lieutenant, and because the plaintiff
has failed to “participate in the preparing of the managing of the case with the remaining
defendants listed in the complaint due to intimidation, [and] threats made by some of the
defendants.” (ECF No. 135 at Page ID## 872-73.) The plaintiff argues that his failure to
prosecute this case should be considered excusable neglect, “due to the threats made to plaintiff,”
that there is no evidence the plaintiff acted in bad faith, and that there is no evidence that the
plaintiff’s failure to prosecute this action has prejudiced the defendants. (Id.) Additionally, in
the “affidavit” that the plaintiff filed in support of his response, the plaintiff states only that
Gregory Leonard made “verbal threats,” and he states that defendants Smith and Bryant are also
no longer with RMSI. (ECF No. 136.)
On August 19, 2016, the plaintiff filed two supplemental documents requesting that the
court dismiss the order to show cause. (ECF Nos. 137-38.)
Federal Rule of Civil Procedure 41(b) gives the court the authority to dismiss a case for
“failure of the plaintiff to prosecute or to comply with these rules or any order of the court.” See,
e.g., Nye Capital Appreciation Partners, L.L.C. v. Nemchik, 483 Fed.Appx. 1, 9 (6th Cir. 2012);
Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 362–63 (6th Cir. 1999). “The authority of a federal
trial court to dismiss a plaintiff's action with prejudice because of his failure to prosecute cannot
seriously be doubted.” Link v. Wabash R. Co., 370 U.S. 626, 629 (1962).
Moreover, the fact that a plaintiff is incarcerated does not absolve him of the
responsibility to prosecute his lawsuit in a diligent manner. Snavley v. Redman, 107 F.R.D. 346
(E.D. Mich. 1985).
In determining whether to dismiss an action under Fed. R. Civ. P. 41, the court considers,
what are frequently referred to as the four “Regional Refuse” factors:
(1) whether the party’s failure is due to willfulness, bad faith, or fault; (2)
whether the adversary was prejudiced by the dismissed party’s conduct; (3)
whether the dismissed party was warned that failure to cooperate could lead
to dismissal; and (4) whether less drastic sanctions were imposed or
considered before dismissal was ordered.
Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005); see Regional Refuse Sys., Inc. v.
Inland Reclamation Co., 842 F.2d 150, 155 (6th Cir. 1988). However, “[t]he authority of a court
to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,’
governed not by rule or statute but by the control necessarily vested in courts to manage their
own affairs so as to achieve the orderly and expeditious disposition of cases. Link , 370 U.S. at
For a plaintiff’s actions to be motivated by bad faith, willfulness, or fault, his conduct
must display either an intent to thwart judicial proceedings or a reckless disregard for the effect
of [his] conduct on those proceedings.” Wu, 420 F.3d at 643 (quoting Mulbah v. Detroit Bd. of
Educ., 261 F.3d 586, 591 (6th Cir. 2001) (internal quotation marks omitted) (alteration in
original)); Schafer v. City of Defiance Police Department, 529 F.3d 731, 739 (6th Cir. 2008).
The court finds that plaintiff is at fault for failing to diligently prosecute this action.
Although the plaintiff’s conduct may not rise to the level of bad faith, the record demonstrates
that plaintiff’s failure to prosecute this action was willful and, if nothing else, suggests an
intention to abandon his claims.
As amply demonstrated by the extensive procedural history of this action, the plaintiff
had no difficulty in pursuing this litigation through March of 2015. The plaintiff knew how to
seek more time to complete a task where necessary, (see e.g., ECF Nos. 5-6, 17-19), he knew
how to bring issues to the court’s attention when he was facing problems in moving forward with
the litigation of this matter, (see e.g., ECF Nos. 58, 60, 67, 77), he knew how to file briefs in
opposition to defendants’ motion to dismiss (see e.g., ECF Nos. 79-82, 84, 89-92, 98, 100, 102),
and he knew how to file objections to the magistrate judge’s ruling (see e.g., ECF Nos. 51, 126).
Nevertheless, and despite the plaintiff’s experience as an inmate legal advisor, with
qualifications as described above, the plaintiff did not do anything to prosecute this action for
nearly a year and one-half.5 The plaintiff’s only excuse for sitting idle for so long is that
Moreover, as the court noted in denying the plaintiff’s objections to the magistrate judge’s
order denying his motion to appoint counsel, “Mr. Harbison has been functioning as a “legal
assistant” to other prisoners at the facility where he is housed . . . [thus, he] will be at an
defendant Leonard threatened the plaintiff by telling the plaintiff to stop serving him with
pleadings and that defendants Thompson, Schofield, Bryant and Smith are no longer employed at
RMSI or by TDOC.
First, the plaintiff advised the court on June 27, 2014, nearly 26 months before he filed
his response to the order to show cause, that Leonard had made threats on June 2, 2014,
regarding the service of pleadings. (See ECF No. 58.) The plaintiff also advised the court that
he had a solution to the problem—send the pleadings to the court for file-stamps first and then
have filed-stamped copies sent to Leonard. (Id.) Moreover, it is clear from the proofs of service
that the plaintiff filed after June 27, 2014, that Leonard’s alleged threats did not deter the
plaintiff from serving him with pleadings. (See e.g. ECF No. 67-72, 77.) The plaintiff fails to
set forth any facts to suggest that defendant Leonard’s alleged threats continued after June of
2014, or that, even if they did, how these alleged threats impaired the plaintiff’s ability to litigate
this case at all, or specifically, against the other remaining defendants. Finally, even if defendant
Leonard’s threats continued after June of 2014, the plaintiff failed to advise the court that
defendant Leonard’s threats were a problem, or to move the court for an order to assist him in
dealing with defendant Leonard, despite ample evidence that he knew how to accomplish these
Second, at least three times, and probably more, the plaintiff filed court forms that he
filled out, or documents that he created, which alerted the defendants as to what they could
expect if they failed to respond to the plaintiff’s attempts to serve them with process. (See ECF
advantage in representing himself in this case as he has been attempting to function as counsel
for other inmates. (ECF No. 51.)
Despite the plaintiff’s claims that defendants threatened him, he does not set forth any facts to
suggest that any defendant other than Leonard threatened him in any way.
Nos. 43, 69-71, 72.) The court’s form Summons and the court’s form Waiver of the Service of
Summons, which the plaintiff copied in the typewritten document that he prepared, advised each
defendant that, if he or she failed to respond to service of process, “a default judgment will be
entered against [the defendant].” (ECF Nos. 43, 72.) Additionally, the notice of “Waiving
Service of Summons” that the plaintiff created explained that, if the defendant did not return the
signed waiver of service form, the plaintiff would “ask the court to require you . . . to pay the
expenses of making service.” (See ECF Nos. 69-71.) Nevertheless, the plaintiff never filed for a
default judgment and never moved the court to order the defendants to pay the service fees he
incurred. Indeed, the plaintiff did not do anything to move his case forward.
Finally, the fact that none of the remaining defendants, other than Gregory Leonard, are
still employed at RMSI or by TDOC, does not in any way excuse the plaintiff’s failure to
prosecute this case.
The court next considers “whether the adversary was prejudiced by the dismissed party’s
conduct.” Knoll, 176 F.3d at 363. The key to finding prejudice is whether the errant party
“waste[d] time, money, and effort in pursuit of cooperation which [the errant party] was legally
obligated to provide.” Harmon v. CSX TRansp., Inc., 110 F.3d 364, 368 (6th Cir. 1997) (finding
prejudice caused by the plaintiff’s failure to respond to interrogatories).
While it is not clear how much time, money and effort the defendants, other than Bean
and Carpenter, were required to expend as a result of this litigation, what is clear is that because
the plaintiff failed to diligently prosecute this action, all remaining defendants, expect Leonard,
have moved on from RMSI or the TDOC or both. Whatever wrongful conduct the plaintiff
alleges the defendants engaged in took place well more than two years ago and took place in
connection with their previous employment at RMSI and TDOC. The defendants’ ability to
protect their own interests has been seriously impaired, if not completely undermined, by the
plaintiff’s failure to diligently prosecute this action. Under these circumstances, prejudice to the
defendants is manifest. Snavley, 107 F.R.D. at 348 (finding prejudice and dismissing where
plaintiff’s case was dormant for 19 months after defendants’ answer was filed).
C. Prior Notice and Alternatives
The magistrate judge’s order to show cause put the plaintiff on notice that the court was
considering dismissing this action for failure to prosecute.7 (ECF No. 131.) Nowhere in the
order did the magistrate judge convey that the plaintiff would prevent dismissal merely by filing
a response to the order to show cause. Where, as here, the plaintiff fails to demonstrate that the
four “Regional Refuse” factors weigh in his favor, the action may be dismissed. See Schafer,
529 F.3d at 740 (dismissing plaintiff’s complaint for failure to prosecute where only one factor
weighed in plaintiff’s favor.)
Finally, the Sixth Court has instructed district courts to look first to an alternative
sanction that would protect the integrity of the judicial process, but it has “never held that a
district court is without power to dismiss a complaint, as the first and only sanction,” and it is
reluctant “to require the district court to incant a litany” of possible lesser sanctions. Schafer,
529 F.3d at 738 (quoting Harmon, 110 F.3d at 368) (internal quotation marks omitted).
Given that the plaintiff has entirely abandoned his case without meaningful excuse, that
the case has remained dormant for nearly one and one-half years, that all defendants were sued in
Moreover, it bears noting that at least three other orders issued in this action warned the
plaintiff that his failure to take action might result in the dismissal of this case for failure to
prosecute. See ECF Nos. 14 (failure to pay filing fee), 19 (same), 20 (failure to file an amended
connection with their employment at RMSI or with TDOC, and now only one defendant is still
employed at RMSI or by TDOC, no alternative sanction to dismissal would adequately protect
the integrity of the judicial process.
For the reasons set forth herein, the court vacates the referral to the magistrate judge and
discharges the order to show cause issued by the magistrate judge. This action will be dismissed
for failure to prosecute. An involuntary dismissal under Rule 41(b) “operates as an adjudication
on the merits.” Fed. R. Civ. P. 41(b).
An appropriate order is filed herewith.
It is so ORDERED.
ALETA T. TRAUGER
UNITED STATES DISTRICT JUDGE
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