Potter v. Troutt et al

Filing 30

REPORT AND RECOMMENDATION re 1 Complaint filed by Adam Potter. Given Potter's failure to comply with, or even respond to, the Court's orders, the Magistrate Judge RECOMMENDS that this lawsuit be DISMISSED WITHOUT PREJUDICE. Signed by Magistrate Judge Alistair Newbern on 12/10/18. (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
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

ADAM POTTER,
Plaintiff,

Case No. 3:17-cv-00179

v.

Judge Aleta A. Trauger
Magistrate Judge Alistair E. Newbern

SONYA TROUTT, et al.,
Defendants.

To:

The Honorable Aleta A. Trauger, District Judge
REPORT AND RECOMMENDATION
By order entered February 7, 2017, the Court referred this action to the Magistrate Judge

under 28 U.S.C. § 636(b)(1) to dispose or recommend disposition of any pretrial motions. (Doc.
No. 4, PageID# 21.) There has been no operative complaint in this action since March 19, 2018,
when the Court dismissed Plaintiff Adam Potter’s claims without prejudice to his filing an
amended complaint. (Doc. Nos. 19, 21.) The Court twice extended the deadline for Potter to file
an amended complaint, finally to July 16, 2018. (Doc. Nos. 23, 26.) Potter has not done so, nor
has he responded to the Court’s August 20, 2018 order requiring him to show cause within twentyone days why his lawsuit should not be dismissed for failure to prosecute or comply with the
Court’s order (Doc. No. 29). The Magistrate Judge therefore RECOMMENDS that this case be
DISMISSED WITHOUT PREJUDICE under Federal Rule of Civil Procedure 41(b).
I.

Factual and Procedural Background
Proceeding pro se, Potter brought this action under 42 U.S.C. § 1983 on January 27, 2017,

when he was a pretrial detainee at the Sumner County Jail (SCJ) in Gallatin, Tennessee. (Doc. No.

1, PageID# 1–2.) He is now incarcerated at the Bledsoe County Correctional Complex (BCCC).
(Doc. No. 27.) In his original complaint, Potter alleges that, when he arrived at SCJ, he had pieces
of glass in his left eye as the result of a recent car wreck. (Doc. No. 1, PageID# 5.) Potter states
that, despite submitting sick call forms and grievances, the SCJ’s medical staff refused to send him
to an eye doctor and, eventually, he lost vision in the injured eye. (Id.) Potter alleges that this
violated his Eighth Amendment right to have adequate medical care and seeks $250,000 in
damages “for mental anguish[] and pain and suffering.” (Id. at PageID# 5–6.) Potter named Sonya
Troutt, the Administrator of SCJ, and Southern Health Partners (SHP) as defendants. (Id. at
PageID# 2.)
On February 7, 2017, the Court granted Potter’s application to proceed in forma pauperis
and dismissed all claims against Troutt after finding that there was “no suggestion that [Troutt]
took part in any medical decision” relating to Potter. (Doc. No. 3, PageID# 21.) SHP moved to
dismiss Potter’s claims under Federal Rule of Civil Procedure 12(b)(6) on March 30, 2017 (Doc.
No. 13), arguing that Tennessee’s one-year statute of limitations applicable to personal injury
actions barred Potter’s claim.
Potter did not respond to SHP’s motion despite two orders from the Court that he do so.
On October 23, 2017, the Court ordered Potter to show cause within thirty days why his action
should not be dismissed for the reasons set out in SHP’s motion to dismiss or for failure to
prosecute. (Doc. No. 16, PageID# 54.) On November 20, 2017, the Court received a letter from
Kimberly Williams who claimed to be “speaking on behalf of” Potter. (Doc. No. 17, PageID# 55.)
Williams stated that Potter was incarcerated at SCJ and that: (1) the only mail Potter had received
relating to the case was the Court’s October 23, 2017 show cause order; (2) Potter had “sent
multipl[e] letters to the court in order to properly provide adequate evidence showing cause of the

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suit against Southern Health Care Partners”; and (3) Potter opposed dismissal of the case. (Id.)
Williams also informed the Court that Potter was “concerned that his mail [was] not being properly
sent and received.” (Id.) The Court construed Williams’s letter as a response to the show cause
order and informed Williams that, as a non-lawyer, she could not make filings on Potter’s behalf.
(Doc. No. 18, PageID# 57.) The Court then directed the Clerk’s Office to mail Potter a copy of
SHP’s pending motion to dismiss and ordered Potter to file any response in opposition by
December 13, 2017. (Id.) The order warned Potter “that a failure to respond may be construed as
a lack of opposition to [SHP’s] motion and result in the recommendation that this action be
dismissed.” (Id. at PageID# 57.)
On February 20, 2018, the Magistrate Judge recommended that SHP’s motion to dismiss
be denied, but found, after a sua sponte review under 28 U.S.C. § 1915(e)(2)(B)(ii), that Potter had
failed to state a claim against SHP by “alleg[ing] only that ‘medical staff’ refused to send him to
an eye doctor.” (Doc. No. 19, PageID# 65.) The Magistrate Judge therefore recommended that
Potter’s lawsuit be dismissed without prejudice. (Id. at PageID# 59.) On March 19, 2018, Potter
filed a motion to amend his complaint, explaining that, “when he referenced ‘medical staff’” in his
original complaint, he was referring to “Dr. Matthews and Nurse Shelly, the chronic care nurse.”
(Doc. No. 20, PageID# 66.) The District Judge granted Potter’s motion to amend on March 19,
2018, giving him thirty days to file an amended complaint. (Doc. No. 21, PageID# 71–72.)
Potter did not file an amended complaint and, instead, filed a letter with the Court in which
he inquired about the status of his motion to amend, stating that he “never received any response
at all concerning [that filing].” (Doc. No. 24, PageID# 78.) The Court directed the Clerk’s Office
to mail to Potter a copy of the Court’s order granting him leave to amend and extended the
amendment deadline to June 1, 2018. (Doc. No. 23, PageID# 76.)

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Potter then filed a document entitled “Order of Complaint” on May 22, 2018, in which he
“humbly petitions [the] Court to acknowledge his amended complaint” and sets forth barebones
allegations. (Doc. No. 25, PageID# 85.) In a June 18, 2018 order, the Court found that, “[a]lthough
Potter has not filed anything that can be adequately construed as an amended complaint, he has
named two individual defendants by identifying Dr. Matthews and Nurse Shelly” and “[h]e has
also identified as-yet-unnamed individual nurse defendants.” (Doc. No. 26, PageID# 90.) The
Court therefore ordered Potter “to file an amended complaint naming these individual defendants
and including his factual allegations and legal claims” by July 16, 2018. (Id. at PageID# 91.)
Potter did not file an amended complaint, although he did file a notice of change of address
on July 2, 2018, stating that he had been transferred to the BCCC. (Doc. No. 27.) The Court’s June
18, 2018 order was subsequently resent to Potter’s new address. (Doc. No. 28.) On August 20,
2018, the Court noted that Potter had yet to file an amended complaint and ordered him to “show
cause within twenty-one days . . . why his lawsuit should not be dismissed for his failure to
prosecute it or failure to comply with the Court’s June 18, 2018 order.” (Doc. No. 29, PageID#
96.) The order warned Potter “that his lawsuit may be dismissed if he fails to respond . . . .” (Id.)
Potter has not responded.
II.

Legal Standard
Federal Rule of Civil Procedure 41(b) states that, “[i]f the plaintiff fails to prosecute or to

comply with these rules or a court order, a defendant may move to dismiss the action or any claim
against it.” Fed. R. Civ. P. 41(b). Rule 41(b) does not abrogate the power of courts, “acting on
their own initiative, to clear their calendars of cases that have remained dormant because of the
inaction or dilatoriness of the parties seeking relief.” Link v. Wabash R.R. Co., 370 U.S. 626, 630
(1962); see also Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991); Carter v. City of Memphis,

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636 F.2d 159, 161 (6th Cir. 1980) (“[i]t is clear that the district court does have the power under
Rule 41(b), Fed. R. Civ. P., to enter a sua sponte order of dismissal”) (citing Link, 370 U.S. at
626).
In determining whether dismissal under Rule 41(b) is appropriate, the Court considers four
factors: (1) the willfulness, bad faith, or fault of the plaintiff; (2) whether the defendant has been
prejudiced by the plaintiff’s conduct; (3) whether the plaintiff was warned that failure to cooperate
could lead to dismissal; and (4) the availability and appropriateness of other, less drastic sanctions.
Carpenter v. City of Flint, 723 F.3d 700, 703–04 (6th Cir. 2013) (quoting Mulbah v. Detroit Bd.
of Educ., 261 F.3d 586, 590 (6th Cir. 2011)). A dismissal for failure to prosecute under Rule 41(b)
constitutes an adjudication on the merits “[u]nless the dismissal order states otherwise.” Fed. R.
Civ. P. 41(b). The Sixth Circuit has cautioned that dismissal with prejudice is a “harsh sanction”
that should only apply in extreme situations where there is a “clear record of delay or contumacious
conduct by the plaintiff.” Carter, 636 F.2d at 161. Dismissal without prejudice is “a comparatively
lenient sanction” for which the “controlling standards should be greatly relaxed because the
dismissed party is ultimately not irrevocably deprived of his day in court.” Muncy v. G.C.R. Inc.,
110 F. App’x 552, 556 n.4 (6th Cir. 2004).
III.

Analysis
Dismissal of this action is appropriate under Rule 41(b). There is no evidence that Potter’s

apparent abandonment of his lawsuit is driven by bad faith. Regardless, he is “at fault for failing
to comply with the Court’s Orders.” Malott v. Haas, No. 16-13014, 2017 WL 1319839, at *2 (E.D.
Mich. Feb. 8, 2017). Potter was ordered on June 18, 2018, to file an amended complaint by July
16, 2018. (Doc. No. 26.) He did not. Potter then failed to respond to the Court’s order to show
cause why his lawsuit should not be dismissed. (Doc. No. 29.) That order warned Potter that his

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lawsuit might be dismissed if he failed to respond. (Id.) Again, he filed nothing. Nor is this the
first time Potter has been unresponsive to the Court’s orders—despite twice being ordered to
respond to SHP’s motion to dismiss, he did not do so. (Doc. Nos. 16, 18.)
Dismissal of Potter’s complaint without prejudice balances the Court’s interest in “sound
judicial case and docket management” with “the public policy interest in the disposition of cases
on their merits.” Muncy, 110 F. App’x at 557 n.5; Mulbah, 261 F.3d at 591. Such a sanction is
particularly appropriate in cases of prolonged inactivity and where, as here, the plaintiff appears
pro se. See Mulbah, 261 F.3d at 591 (noting that the four-factor test is applied “more stringently
where the conduct of a plaintiff’s attorney is the reason for dismissal”). Dismissal without
prejudice best addresses the interests of this litigation.
IV.

Recommendation
Given Potter’s failure to comply with, or even respond to, the Court’s orders, the Magistrate

Judge RECOMMENDS that this lawsuit be DISMISSED WITHOUT PREJUDICE under Federal
Rule 41(b).
Any party has fourteen days after being served with this report and recommendation to file
specific written objections. Failure to file specific objections within fourteen days of receipt of this
report and recommendation can constitute a waiver of appeal of the matters decided. Thomas v.
Arn, 474 U.S. 140, 155 (1985); Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004). A party
who opposes any objections that are filed may file a response within fourteen days after being
served with the objections. Fed. R. Civ. P. 72(b)(2).
Entered this 10th day of December, 2018.
.
____________________________________
ALISTAIR E. NEWBERN
United States Magistrate Judge
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