Nelson v. Zook et al

Filing 57

REPORT AND RECOMMENDATION: For the reasons stated below, the Magistrate Judge recommends that the pending motion for summary judgment (Docket Entry 45 ) be granted and the motion to ascertain the status of the motion (Docket Entry 56 ) be termed as moot Signed by Magistrate Judge Joe Brown on 12/18/15. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
CHARLES D. NELSON 57250,

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Plaintiff
v.
f/n/u ZOOK, et al.,
Defendants
TO:

No. 3:15-0573
Senior Judge Haynes/Brown

THE HONORABLE WILLIAM J. HAYNES, JR.
REPORT AND RECOMMENDATION
For

the

reasons

stated

below,

the

Magistrate

Judge

recommends that the pending motion for summary judgment (Docket
Entry 45) be granted and the motion to ascertain the status of the
motion (Docket Entry 56) be termed as moot.1
BACKGROUND
The Plaintiff filed a complaint against these Defendants
on

February

23,

2015

(Docket

Entry

3-1CV-164).

However,

the

Plaintiff failed to complete his application to proceed in forma
pauperis or to pay the filing fee in the matter. Judge Campbell
therefore dismissed the case without prejudice on April 27, 2015
(Docket Entry 15) for failure to prosecute and to obey the orders
of the Court under Federal Rules of Civil Procedure 41(b).
The Plaintiff filed the present case on May 20, 2015
(Docket Entry 1). In this case the Plaintiff’s application to

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Given the volume of pending cases, the Magistrate Judge would
suggest that counsel not waste their and the court’s time filing motions
to ascertain the status of dispositive motions until at least 60 days
after they are ready for a decision, absent some pressing need.

proceed in forma pauperis was granted (Docket Entry 11). In that
order Judge Haynes noted the Plaintiff’s earlier case and its
dismissal without prejudice. The court found that the complaint
passed an initial frivolity review, but noted that the Plaintiff
would need to provide proper identification for the defendants
described

in

the

complaint.

The

Plaintiff

in

this

case

was

forewarned, as in the previous case, of the necessity of keeping
the Clerk informed of his current address at all times. The matter
was referred to the undersigned for case management and for a
report and recommendation as to any dispositive matter.
All of the Defendants were served and they filed a motion
for

summary

judgment

on

October

16,

2015

(Docket

Entry

45)

supported by a memorandum of law and statement of facts, along with
an affidavit providing various materials in support of their
motions (Docket Entries 46 through 49).
It appears that mail sent to the Plaintiff at his listed
address in Lebanon, Tennessee, was returned as undeliverable and
the Plaintiff did not respond to the motion for summary judgment in
the required time. The Plaintiff was specifically warned (Docket
Entry 53) that he must respond to the motion for summary judgment
by November 30, 2015, and follow Rule 56 of the Federal Rules of
Civil Procedure and Local Rule 56.01, and that failure to respond
could be taken to mean the Plaintiff does not oppose the motion.
The order was sent by certified mail and a return receipt
signed by the Plaintiff was returned to the Clerk (Docket Entry

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55). As of the entry of this report and recommendation, no response
from the Plaintiff has been received.
A motion for summary judgment is based on the premise
that the statute of limitations has run and the Plaintiff‘s claims
are therefore barred.
STANDARD OF REVIEW
A party may obtain summary judgment by showing “that
there is no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law. See Fed. R. Civ.
P. 56(a); Covington v. Knox County School Sys., 205 F.3d 912, 914
(6th Cir. 2000). The moving party bears the initial burden of
satisfying the court that the standards of Rule 56 have been met.
See Martin v. Kelley, 803 F.2d 236, 239 n.4 (6th Cir. 1986). The
ultimate question to be addressed is whether there exists any
genuine dispute of material fact. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); Covington, 205 F.3d at 914 (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). If so, summary
judgment is inappropriate.
To

defeat

a

properly

supported

motion

for

summary

judgment, the nonmoving party must set forth specific facts showing
that there is a genuine issue of material fact for trial.

If the

party does not so respond, summary judgment will be entered if
appropriate. Fed. R. Civ. P. 56(e). The nonmoving party’s burden of
providing specific facts demonstrating that there remains a genuine
issue of material fact for trial is triggered once the moving party

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shows an absence of evidence to support the nonmoving party’s case.
Celotex, 477 U.S. at 325. A genuine issue of material fact exists
“if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248. In
ruling on a motion for summary judgment, the Court must construe
the evidence in the light most favorable to the nonmoving party,
drawing all justifiable inferences in its favor. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
LEGAL DISCUSSION
The complaint alleges that excessive force was used by
the Defendants when the Plaintiff was booked into the Rutherford
County Detention Center (RCDC) on February 20, 2014. The Plaintiff
requested a legal package on March 7, 2014. He filed this complaint
on May 20, 2015, some 15 months after the incident and over 14
months after he requested a legal package. The Defendants contend
that the Plaintiff’s complaint is barred by the Tennessee one-year
statute of limitations.
The Magistrate Judge notes that in the present complaint
(Docket Entry 1) the Plaintiff makes no mention of his earlier
complaint. The Plaintiff does indicate that he filed a grievance
about the matter and the authorities took no action on the matter.
The Magistrate Judge notes that in his first complaint (3-15-cv164) the Plaintiff noted that he filed a grievance and the response
to the prison authority was that it was too late, but it was not.

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In the 1983 cases the Court applies the Tennessee oneyear statute of limitations. Berndt v. State of Tennessee, 796 F.2d
879 (6th Cir. 1986).
Although the Plaintiff has not responded to the motion
for

summary

judgment,

the

Magistrate

Judge

has

nevertheless

reviewed the record to see if there are grounds that might justify
tolling of the statute of limitations. The statute is tolled while
the Plaintiff exhausts his administrative remedies. “The statute of
limitations for claims subject to the PLRA is tolled while the
plaintiff exhausts his required administrative remedies.” Surles v.
Andison, 678 F.3d 452, 458 (6th Cir. 2012).
Unfortunately, neither side presented any evidence as to
the time the Plaintiff took to exhaust his administrative remedies.
The

Defendants

have

not

raised

exhaustion

as

an

affirmative

defense. There is nothing in the record to indicate that the
exhaustion process would have taken more than six weeks, at the
most.
The

second

possibility

for

tolling

the

statue

of

limitations deals with the Plaintiff’s earlier efforts to file,
which were dismissed without prejudice. However, again, the Sixth
Circuit has held that the dismissal of a case without prejudice
does not toll the statute of limitations.

See Gill v. Locricchio,

2011 WL 3809941 (E.D. Mich. Aug. 29, 2011); Wesleyan v. Grumman
Ohio Corp., 815 F.2d 26, 28 (6th Cir. 1987).

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Therefore, the Magistrate Judge finds that the statute of
limitations does bar this litigation and the motion for summary
judgment

should

be

granted

and

this

case

dismissed

without

prejudice.
Even if the motion for summary judgment should not be
granted on statute of limitations grounds, this case should be
dismissed for failure to obey court orders and to prosecute for the
reasons set out by Judge Campbell in his earlier dismissal of
Nelson v. Zook, et al., 3:15-0164 (Docket Entry 13), where he
stated:
An action is subject to dismissal for want of prosecution
where the pro se litigant fails to comply with the
court’s orders or engages in a clear pattern of delay.
Gibbons v. Asset Acceptance Corp., No. 1:05CV467, 2006 WL
3452521, at *1 (S.D. Ohio Nov. 29, 2006); see also
Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996).
District courts have the inherent power to sua sponte
dismiss an action for want of prosecution “to manage
their own affairs so as to achieve the orderly and
expeditious disposition of cases.” Link v. Wabash
Railroad, 370 U.S. 626, 630-31 (1962).
In this case the Plaintiff was warned about the necessity
of keeping an address on file with the Court and the need for him
to pick up his mail. The Plaintiff in this case clearly received
the Court’s order to respond to the motion for summary judgment by
November 29, 2015, and he has failed to do so.
Additionally, dismissal under this provision could be
without prejudice. However, the statute of limitations has now
clearly run and any attempt to refile a third case would certainly
be barred by the applicable statute of limitations.
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RECOMMENDATION
For

the

reasons

stated

above,

the

Magistrate

Judge

recommends that the motion for summary judgment (Docket Entry 35)
be granted and this case dismissed with prejudice. Further, the
Magistrate Judge recommends that any appeal not be certified as
taken in good faith. Alternatively, the Magistrate Judge recommends
that the case be dismissed without prejudice for failure to
prosecute and to obey Court orders under Federal Rule of Civil
Procedure 41.
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).
ENTER this 18th day of December, 2015.
/s/

Joe B. Brown

JOE B. BROWN
United States Magistrate Judge

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