Moore v. Jones et al
REPORT AND RECOMMENDATION re 31 MOTION to Dismiss for Lack of Prosecution and Failure to Comply with Court Order filed by J.W. Jones. Signed by Magistrate Judge Joe Brown on 8/15/17. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
BENNY JOE MOORE,
OFFICER J.W. JONES,
Chief Judge Crenshaw/Brown
THE HONORABLE WAVERLY D. CRENSHAW, JR.
REPORT AND RECOMMENDATION
recommends that this case be dismissed with prejudice for failure
to prosecute and to obey Court orders.
The Plaintiff filed a complaint against Officer Jones and
the Smyrna Police Department on September 8, 2016 (Docket Entry 1).
After initial review (Docket Entry 8) the Plaintiff was allowed to
proceed in forma pauperis against Officer Jones. The matter was
referred to me for case management and a report and recommendation
on any dispositive matter.
Plaintiff alleged that on June 14, 2016, he was in a physical
altercation with someone else and the police were called. He
alleged that knowing that he had two warrants for failure to appear
he went outside to wait for the arrival of the police and that when
they arrived he laid on his stomach with his hands behind his back,
offering no resistance. He alleged that Defendant Jones flew into
a “blind rage” over a suspicion that the Plaintiff had beaten a
aggressively that he snapped the Plaintiff’s forearm. He alleges
that the injury caused him to have a plate and screw used to repair
The Court found that this did state a colorable claim
against Officer Jones for the use of excessive force.
After service of process was complete, an answer was
filed (Docket Entry 15), and a scheduling order (Docket Entry 16)
was entered. The scheduling order specifically provided that all
discovery would be completed by June 13, 2017, and that the
Plaintiff was required at all times to keep a current address on
file with the court.
On February 6, 2017, the Plaintiff filed a notice of
change of address (Docket Entry 22).
Subsequently, Officer Jones filed a motion on July 11,
interrogatories and requests for production. In the motion he
alleged that the first set of interrogatories and requests for
production of documents were sent to the Plaintiff in January of
2017, while he was still incarcerated. A second set of discovery
was then mailed to his home in Alabama at the address that he had
provided and is reflected on the court docket sheet. They allege
that his mother signed for the discovery documents sent to Alabama
on February 13, 2017. When a timely response was not received the
Defendant’s counsel state they mailed a letter to the Plaintiff
informing him the responses were overdue and offering an extension
to April 5, 2017, to respond.1 They allege that as of July 11,
2017, they have received no response whatever from the Plaintiff.
As a result of this motion the undersigned entered an
order (Docket Entry 30) for the Plaintiff to show cause by July 31,
2017, why the undersigned should not recommend that his case be
dismissed for failure to respond to discovery and to prosecute his
case. The Plaintiff was advised that he could satisfy the show
cause order by fully complying with the discovery requests that
were sent to him by July 31, 2017. The Plaintiff was specifically
warned that failure to show cause or to comply with the discovery
dismissed for failure to prosecute and to obey Court orders.
The Court has received no response one way or the other
from the Plaintiff and the Defendant has now filed a motion to
dismiss (Docket Entry 31) noting that they have not received any
response to their discovery requests as of the date of filing their
motion on August 14, 2017.
An action is subject to dismissal for want of prosecution
where the pro se litigant fails to comply with the Court’s order,
and engages in a pattern of delay. Gibbons v. Assets Acceptance
Corporation, 2006 WL 3452521, *1 (S.D. Ohio, Nov. 29, 2006).
The Courts have the inherent power, exercisable in its
sound discretion, to dismiss a case for want of prosecution in
order to management their own affairs so as to achieve the orderly
In their motion to compel (par. 3) the Defendant erroneously refers
to the Plaintiff as the Defendant. However, the intent of the motion is
and expeditious disposition of cases. Link v. Wabash Railroad, 370
U.S. 626, 630-31 (1962); Smith v. Correction Corp. of America, Case
No. 3:14-CV-1259 (MDTN, Judge Campbell, April 7, 2014).
In this case the Plaintiff was advised in the initial
specifically ordered on July 14, 2017 (Docket Entry 30) to show
cause why his case should not be dismissed for failure to respond
to discovery requests and to prosecute his case. It is apparent
that the Plaintiff has ignored this order and has not shown cause
or complied with the outstanding discovery requests. It appears he
has taken no discovery from the Defendant.
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) whether 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 has been warned of the
necessity to respond to motions and specifically directed to show
cause or comply with outstanding discovery. The Plaintiff has
ignored both of these responsibilities. Therefore, it can only be
willfulness, bad faith, or fault. The Defendant in this case is
clearly prejudiced because without discovery requests he cannot
complete his defense and will not be in a position to file an
appropriate dispositive motion. The Plaintiff has, as noted above,
been specifically warned of the failure to comply with the show
cause order could lead to dismissal.
Finally, the Magistrate Judge has considered a less
drastic sanction of dismissal without prejudice. However, given
that the incident complained about was in June 2016, even a
dismissal without prejudice would in all likelihood be barred by
the applicable one-year statute of limitations, dismissal with
prejudice is appropriate.
recommends that this case be dismissed with prejudice for failure
to prosecute and to obey Court orders and that any appeal from this
dismissal not be certified as taken in good faith. All other
motions should be denied as moot.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
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 15th day of August, 2017.
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge
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