Turner et al v. Prisoner Transport Service of Am et al

Filing 47

ORDER: The Report and Recommendation (Doc. No. 44 ) is APPROVED AND ADOPTED. Plaintiff Smith's claims are DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule 41.01(b). This case will proceed on Plain tiff's Turner's claims. It is returned to the Magistrate Judge for further case management. Signed by Chief Judge Waverly D. Crenshaw, Jr on 3/11/2019. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jm)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JOSHUA B. TURNER and
WILLIAM E. SMITH,
Plaintiffs,
v.
PRISONER TRANSPORT SERVICE
OF AM, ET AL.,
Defendants.

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NO. 3:17-cv-01260
CHIEF JUDGE CRENSHAW

ORDER
In this pro se prisoner litigation, Plaintiffs Turner and Smith allege that Defendants violated
their civil rights while transporting them from North Carolina to several other states. Before the
Court is a Report and Recommendation from the Magistrate Judge concluding that Plaintiff Smith
should be dismissed without prejudice under Federal Rule of Civil Procedure 41(b) and Local Rule
41.01(b). No objection has been filed.
Federal Rule of Civil Procedure 41(b) “confers on district courts the authority to dismiss
an action for failure of a plaintiff to prosecute the claim or to comply with the Rules or any order
of the Court.” Schafer v. City of Defiance Police Dep’t, 529 F.3d 731, 736 (6th Cir. 2008) (citing
Knoll v. AT&T, 176 F.3d 359, 362–63 (6th Cir. 1999)); see also Link v. Wabash R.R. Co., 370
U.S. 626, 630 (1962) (recognizing “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”); Carpenter v. City of Flint, 723 F.3d 700, 704 (6th Cir. 2013) (“It is well
settled that a district court has the authority to dismiss sua sponte a lawsuit for failure to
prosecute.”). Courts look to four factors for guidance when determining whether dismissal under

Rule 41(b) is appropriate: (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. Knoll, 176 F.3d at 363 (citing Stough v. Mayville Cmty. Sch., 138 F.3d 612,
615 (6th Cir. 1998)). However, “a case is properly dismissed by the district court where there is a
clear record of delay or contumaciotus conduct.” Id. (citing Carter v. City of Memphis, 636 F.2d
159, 161 (6th Cir. 1980)); see also Muncy v. G.C.R., Inc., 110 F. App’x 552, 555 (6th Cir. 2004)
(finding that dismissal with prejudice “is justifiable in any case in which ‘there is a clear record of
delay or contumacious conduct on the part of the plaintiff’”) (quoting Mulbah v. Detroit Bd. of
Educ., 261 F.3d 586, 591 (6th Cir. 2001)). Where noncompliance with a local rule is a ground for
dismissal, “the behavior of the noncomplying party [must] rise[] to the level of a failure to
prosecute under Rule 41(b) of the Federal Rules of Civil Procedure.” Tetro v. Elliott Popham
Pontiac, Oldsmobile, Buick & GMC Trucks, Inc., 173 F.3d 988, 992 (6th Cir. 1999).
Under this rubric, the Court concurs with the Magistrate Judge’s analysis. The Local Rules
of the Middle District of Tennessee provide that a pro se party “must keep the Court and opposing
parties apprised of the pro se party’s current address and other contact information,” and explain
that a pro se party’s failure “to timely notify the Court and opposing parties of any change in
address may result in dismissal of the action with or without prejudice.” Local Rule 41.01(b). In
keeping with this rule, when the Court granted Plaintiffs’ applications to proceed in forma
pauperis, it warned each of them that “prosecution of this action will be jeopardized if he should
fail to keep the Clerk’s Office informed of his current address.” (Doc No. 11.) On April 9, 2018,
the Court received notice from the Chillicothe Correction Institution in Chillicothe, Ohio that
Smith had been paroled on December 8, 2017. (Doc. No. 13.) Smith has never notified the Court

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of his new address; as a result, multiple mailings to Smith from the Clerk’s Office in 2018 and
2019 have been returned as undeliverable (including the Report and Recommendation). (Doc. Nos.
14, 16, 22, 28, 42, 45, 46.) On January 10, 2019, the Magistrate Judge ordered Smith to show cause
by January 24, 2019, why he should not be dismissed from this case for failure to prosecute his
claims and for failure to keep the Court informed of his current address. (Doc. No. 43.) The
Magistrate Judge warned Smith that failure to respond to the order to show cause might result in a
recommendation of dismissal. (Id.) Smith did not respond to the Court’s show cause order. As the
Magistrate Judge correctly explained, Smith’s behavior (1) is contumacious and demonstrates
willfulness and fault; and (2) has occurred despite prior notice of potential dismissal. In short,
Smith has demonstrated no interest in updating his contact information such that he may participate
in this litigation and pursue his claims. Time is advancing, and this case must progress such that
the other litigants are not prejudiced. The Court therefore agrees that dismissal of Smith is
appropriate. The Court further agrees with the Magistrate Judge that, given the public policy
interest in the disposition of cases on the merits, the lesser sanction of dismissal without prejudice
is appropriate in cases of prolonged inactivity and where, as here, the plaintiff appears pro se.
Accordingly, the Report and Recommendation (Doc. No. 44) is APPROVED AND
ADOPTED. Plaintiff Smith’s claims are DISMISSED WITHOUT PREJUDICE pursuant to
Federal Rule of Civil Procedure 41(b) and Local Rule 41.01(b). This case will proceed on
Plaintiff’s Turner’s claims. It is returned to the Magistrate Judge for further case management.
IT IS SO ORDERED.

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WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE

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