McNabb v. Long et al

Filing 10

REPORT AND RECOMMENDATION: For the reasons stated above, the Magistrate Judge recommends that this case be dismissed without prejudice and that any appeal of such dismissal not be certified as taken in good faith. Signed by Magistrate Judge Joe Brown on 7/26/2018. (xc:Pro se party by regular mail.) (jw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE
MARTEZ McNABB,

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Plaintiff
v.
JEFF LONG, Sheriff,
Defendant
RE:

No. 3:18-0067
Judge Trauger/Brown
Jury Demand

THE HONORABLE ALETA A. TRAUGER
REPORT AND RECOMMENDATION
For

the

reasons

stated

below,

the

Magistrate

Judge

recommends that this case be dismissed without prejudice for
failure to prosecute and to obey Court orders and that any appeal
from such dismissal not be certified as taken in good faith.
BACKGROUND
The Plaintiff, acting pro se and in forma pauperis, filed
a complaint on January 18, 2018, against Sheriff Long and Lt.
Vandenbosch

of

the

Williamson

County

Sheriff’s

office.

This

complaint was reviewed by Judge Trauger (Docket Entry 7). In that
review she summarized the factual allegations of his complaint,
which covered a wide range. Her order noted that the Plaintiff
failed to allege, for most of the complaint, whether he was
personally subjected to the alleged unconstitutional behavior about
which he was complaining. The order pointed out that the Plaintiff
could only represent himself with respect to his individual claims
and could not act on behalf of other prisoners. The order also
pointed

out

that

the

Plaintiff

failed

to

specify

what

the

Defendants Long and Vandenbosch did personally. Nevertheless, after
giving the Plaintiff’s complaint a liberal reading, the Court
allowed his complaint to go forward on his allegation that the
Sheriff, as a matter of policy, did not allow inmates sufficient
outdoor recreation. All other claims against the Sheriff were
dismissed.

All

claims

against

the

Defendant

Vandenbosch

were

dismissed.
The Court then, in Docket Entry 8, instructed the Clerk
to send the Plaintiff a service packet for the Defendant Long and
the Defendant was told that he MUST complete the service packet for
Defendant Long and return it to the Clerk’s office within 21 days
of the date of the Court’s order. The Plaintiff was specifically
warned that if he failed to return the completed service packet
within the time allowed the Court could dismiss his action for
failure to prosecute. The Plaintiff was notified that he could
request additional time to comply with the order, if necessary.
The Plaintiff was also forewarned that his action could
be dismissed for failure to prosecute if he failed to keep the
Clerk’s office informed of his current address at all times. The
memorandum, opinion, and order (Docket Entries 7 and 8) were
entered on May 22, 2018. As of the date of this report and
recommendation the Plaintiff has not returned the service packets.
The docket sheet (Docket Entry 9) reflects that on June 21, the
Court’s memorandum and order were returned to Clerk’s office as not
deliverable as addressed. The Clerk resent the memorandum and order

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to the Plaintiff at an updated address in Antioch, Tennessee, on
June 20, 2018. That mail, as of the date of this report and
recommendation, has not been returned.
LEGAL DISCUSSION
A court must be able to control its docket. 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. Gibbon v. Asset Acceptance Corp., 2006 WL
3452521 at *1 (S.D. Ohio Nov. 29, 2006). 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); Smith v. Correction Corp. of America, 3:14-MC-0652
(Docket Entry 7) Judge Campbell, Middle District of Tennessee, June 2,
2014.

The Sixth Circuit in Tetro v. Elliott Popham Pontiac, 173
F.3d 988 (6th Cir. 1999), as set forth a four factor test.
(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 at 992.

3

In this case the party was warned at the outset of the
case of the need to return the service packets and to keep a
current address on file with the Clerk’s office at all times
(Docket Entry 8). The Plaintiff has failed to return the service
packet and initially failed to keep a current address on file after
his apparent release from the Williamson County Jail. The Clerk
took extra efforts to send the memorandum, order, and service
packet to him at an updated address, but the Plaintiff has still
failed to respond by returning the service packet. Without the
service packet the case cannot proceed.
The second factor, concerning prejudice to the Defendant,
is not heavily impacted, although a defendant cannot even begin to
prepare a defense until notice of the lawsuit is received. However,
to the extent evidence might be lost or memories dimmed, there is
a potential for prejudice to the Defendant.
On the third factor, it is clear that the Plaintiff was
specifically warned that his failure to comply with Court orders
could lead to the dismissal of his case.
Finally, while the Court could recommend dismissal with
prejudice, the lesser sanction of dismissal without prejudice is
recommended.1
In this case, since the Plaintiff is not responding to
mail sent his apparent current address, it does not appear that a

1

Even though a dismissal is without prejudice, the statute of
limitations may still prevent the refiling of the case.

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lesser sanction would be effective. Without the service packet
being returned the case simply cannot proceed and the Court must be
able to control its docket and remove unprosecuted cases.
RECOMMENDATION
For

the

reasons

stated

above,

the

Magistrate

Judge

recommends that this case be dismissed without prejudice and that
any appeal of such dismissal not be certified as taken in good
faith.
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 26th day of July, 2018.
/s/
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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