Sims v. McCarter et al

Filing 42

REPORT AND RECOMMENDATION: For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED WITHOUT PREJUDICE for failure to prosecute under Rule 41(b) and Local Rule 41.01(b). Signed by Magistrate Judge Alistair Newbern on 5/13/2019. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JARED RANDALL SIMS,
Plaintiff,

Case No. 3:18-cv-00072

v.

Chief Judge Waverly D. Crenshaw, Jr.
Magistrate Judge Alistair E. Newbern

DUSTIN McCARTER, et al.,
Defendants.

To:

The Honorable Waverly D. Crenshaw, Jr., Chief District Judge
REPORT AND RECOMMENDATION
On March 29, 2019, this Court ordered pro se Plaintiff Jared Randall Sims to show cause

why his claims in this action should not be dismissed for failure to prosecute after Sims failed to
follow the Court’s orders that he file a second amended complaint and provide a mailing address
where he can be reached following his release from jail. (Doc. No. 39.) Sims has not responded to
the Court’s order to show cause. For the reasons that follow, the Magistrate Judge
RECOMMENDS that this action be DISMISSED WITHOUT PREJUDICE for failure to
prosecute under Rule 41(b) and Local Rule 41.01(b).
I.

Factual and Procedural Background
This action began on January 22, 2018, when Sims—who was then incarcerated in the
Sumner County Jail—filed a complaint under 42 U.S.C. § 1983 alleging that Defendants Dustin
McCarter, Taylor Key, and Dustin Hood violated his Fourth Amendment right to be free from
unreasonable search and seizure. (Doc. No. 1.) Sims alleges that, on October 30, 2017, McCarter
and Key, who work as probation and parole officers for the Tennessee Department of Corrections
(TDOC), arrived at Sims’s home looking for a parolee who was visiting Sims and illegally entered

Sims’s room despite his objections. (Id.) McCarter and Key contacted Hood, who works for the
Sumner County Sheriff’s Office (SCSO), and Hood subsequently arrived and searched Sims’s
room under a search warrant he obtained using information from McCarter and Key. (Id.) Based
on that search, Sims was arrested and transported to the Sumner County Jail. (Id.)
On March 2, 2018, the Court granted Sims’s application to proceed in forma pauperis and
screened his complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A. (Doc. Nos. 5, 6.) The Court
found that Sims’s complaint stated claims for relief under 42 U.S.C. § 1983 and stayed this case
pending the conclusion of state criminal proceedings against Sims that followed from the contested
search and subsequent arrest. (Id.) The Court warned Sims that “failure to keep the Clerk’s Office
informed of his current address at all times may result in the dismissal of this action.” (Doc. No.
6, PageID# 28.) On May 7, 2018, Sims notified the Court that the state criminal proceedings had
concluded and asked the Court to reopen this case. (Doc. No. 9.) Sims also moved for leave to file
an amended complaint, explaining that he had received additional information regarding the names
and roles of the defendants in this action. (Doc. No. 8, PageID# 33.) Specifically, Sims explained
that the TDOC officers who arrived at his house on October 30, 2017, were McCarter and Maggie
Robbins and that the SCSO officers involved included Hood, Key, and Detective Brandon Clark.
(Doc. No. 8.)
On November 13, 2018, the Court granted Sims’s motion to reopen the case, construed his
motion to amend as the amended complaint he was entitled to file as a matter of course under
Federal Rule of Civil Procedure 15, and screened the amended complaint under 28 U.S.C.
§§ 1915(e)(2) and 1915A. (Doc. Nos. 11, 12.) The Court found that Sims’s amended complaint
stated colorable claims against all defendants in their individual capacities but dismissed his claims

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against defendants in their official capacities. (Id.) The Court directed the Clerk’s Office to docket
Sims’s amended complaint. (Doc. No. 12.)
On January 22, 2018, Defendants Key, Hood, and Clark filed a motion for a more definite
statement of which of Sims’s pleadings is the operative complaint in this action. (Doc. No. 21.)
Sims did not file a response. On January 15, 2019, the Court granted defendants’ motion for a
more definite statement, finding that the document entered as Sims’s amended complaint on the
docket was not the four-page motion to amend that the Court had construed as Sims’s amended
complaint but, instead, was a copy of Sims’s original complaint. (Doc. No. 23.) The Court further
found that “the most efficient means of resolving the issue is to allow Sims to file a second
amended complaint that incorporates the allegations from his motion for leave to amend (Doc. No.
8) and the allegations of his original complaint into a single pleading.” (Doc. No. 23, PageID#
102.) The Court ordered Sims to file a second amended complaint by February 12, 2019. (Id.)
On February 1, 2019, the Court received a letter from Sims, who was still incarcerated,
stating that he did not have copies of his previous filings and could not afford to pay the fee to
obtain copies from the Clerk’s Office. (Doc. No. 27.) Sims asked that the Court either waive the
copying fees or extend the deadline for filing his second amended complaint until after
February 14, 2019, when he expected to be released from custody. (Id.) The Court construed
Sims’s letter as a motion for an extension of time, granted the motion, and ordered Sims to file a
second amended complaint by February 28, 2019. (Doc. No. 29.) The Court also reminded Sims
of his obligation to keep the Clerk’s Office informed of his current address. (Id.)
Sims did not file a second amended complaint and did not file an updated address. Several
mailings to Sims’s known address have been returned to the Court as undeliverable. (Doc. Nos.
37, 38, 41.) On March 29, 2019, the Court ordered Sims to show cause by April 18, 2019, why

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this action should not be dismissed for Sims’s failure to prosecute his claims and keep the Court
apprised of his current address. (Doc. No. 39.) The Court warned Sims that failure to respond could
result in a recommendation that his claims be dismissed. (Id.) As of the date of this Order, Sims
has not filed any response.
II.

Legal Standard
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.”).
Dismissal for failure to prosecute is a tool for district courts to manage their dockets and avoid
unnecessary burdens on opposing parties and the judiciary. See Schafer, 529 F.3d at 736 (quoting
Knoll, 176 F.3d at 363). The Sixth Circuit therefore affords district courts “substantial discretion”
regarding decisions to dismiss for failure to prosecute. Id.
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)). Under Sixth Circuit precedent, “none of the factors is outcome dispositive,”
but “a case is properly dismissed by the district court where there is a clear record of delay or
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contumacious 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))). Because dismissal without prejudice is a relatively lenient sanction as compared
to dismissal with prejudice, the “controlling standards should be greatly relaxed” for Rule 41(b)
dismissals without prejudice where “the dismissed party is ultimately not irrevocably deprived of
his [or her] day in court.” Muncy, 110 F. App’x at 556 (citing Nwokocha v. Perry, 3 F. App’x 319,
321 (6th Cir. 2001)); see also M.D. Tenn. R. 41.01(a) (dismissal of inactive cases) (allowing Court
to summarily dismiss without prejudice “[c]ivil suits that have been pending for an unreasonable
period of time without any action having been taken by any party”).
This Court’s Local Rule 41.01(b) provides that “[a] party proceeding pro se must keep the
Court and opposing parties apprised of the pro se party’s current address and other contact
information, such as telephone number and email address, if any.” M.D. Tenn. R. 41.01(b)
(dismissal for failure of pro se plaintiff to keep court apprised of current address). 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.” Id. Where, as here, 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).
III.

Analysis
Dismissal of this action is appropriate under Rule 41(b) because the four relevant factors,
considered under the “relaxed” standard for dismissals without prejudice, show a record of delay
by Sims.
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A.

Bad Faith, Willfulness, or Fault

A plaintiff’s actions demonstrate bad faith, willfulness, or fault where they “display either
an intent to thwart judicial proceedings or a reckless disregard for the effect of [plaintiff’s] conduct
on those proceedings.” Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005) (quoting Mulbah,
261 F.3d at 591)). Sims actively litigated this case from January 2018 through February 2019,
showing that he can communicate with the Court when he wants to. His failure to file a second
amended complaint, keep the Court informed of his current mailing address, and respond to this
Court’s show cause order therefore appear to be problems of Sims’s own making. Even if these
failures were not in bad faith, they still reflect “willfulness and fault” for purposes of Rule 41(b).
Hatcher v. Dennis, No. 1:17-cv-01042, 2018 WL 1586235, at *1 (W.D. Tenn. Mar. 30, 2018); see
id. (explaining that “[a] party’s failure to respond in the face of a warning by the court that such
failure could result in dismissal of a complaint tips the scale in favor of dismissal on the first
factor”); Estes v. Smith, No. 2:15-cv-95, 2018 WL 2308780, at *1 (E.D. Tenn. May 21, 2018)
(attributing pro se incarcerated plaintiff’s failure to return service packets or respond to show cause
order “to his own willfulness or fault”). This factor therefore supports dismissal.
B.

Prejudice

The Sixth Circuit has held that “[a] defendant is prejudiced by a plaintiff’s dilatory conduct
if the defendant is ‘required to waste time, money, and effort in pursuit of cooperation which [the
plaintiff] was legally obligated to provide.’” Carpenter, 723 F.3d at 707 (second alteration in
original) (quoting Harmon v. CSX Transp., Inc., 110 F.3d 364, 368 (6th Cir. 1997)); see also
Schafer, 529 F.3d at 739 (same). Such prejudice typically arises in the discovery context. See, e.g.,
Harmon, 110 F.3d at 368 (finding prejudice where plaintiff failed to respond to defendant’s
interrogatories and a related motion to compel); Wright v. City of Germantown, No. 11-02607,
2013 WL 1729105, at *2 (W.D. Tenn. Apr. 22, 2013) (finding prejudice where defendant
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“expended time and money pursuing [plaintiff’s] required initial disclosures and deposition
testimony”). Notably, time and effort spent on “typical steps in the early stages of litigation[,]”
such as answering a complaint or filing pretrial motions to advance the defendant’s position, are
not actions “necessitated by any lack of cooperation” and therefore do not weigh in favor of
dismissal for failure to prosecute. Schafer, 529 F.3d at 739. The Sixth Circuit explained in Schafer
v. City of Defiance Police Department that “[i]f such efforts . . . [were] alone sufficient to establish
prejudice,” for the purpose of Rule 41(b), “then every defendant who answers a complaint and
responds minimally to a lawsuit would be able to claim prejudice[,]” a “result [that] would defy
common sense.” 529 F.3d at 740.
Here, the only significant litigation step that Defendants Clark, Hood, and Key have taken
is filing a motion for a more definitive statement and a short brief in support of that motion. (Doc.
Nos. 21, 22.) Defendants McCarter and Robbins have only filed motions for extensions of time to
answer. (Doc. Nos. 33, 35.) These motions were not necessitated by any lack of cooperation by
Sims and are better characterized as typical steps in the early stages of litigation. See Schafer, 529
F.3d at 739. Consequently, the record does not demonstrate that the defendants have wasted
substantial time, money, or effort due to a lack of cooperation by Sims. This factor weighs against
dismissal.
C.

Prior Notice

Whether a party was warned that failure to cooperate could lead to dismissal “is a ‘key
consideration’” in the Rule 41(b) analysis. Schafer, 529 F.3d at 740 (quoting Stough, 138 F.3d at
615). Here, the Court expressly warned Sims that failure to provide a current mailing address could
lead to dismissal. (Doc. Nos. 6, 29.) The Court also warned Sims that failure to respond to the
Court’s show cause order could lead to a recommendation of dismissal. (Doc. No. 39). This factor
therefore supports dismissal. Schafer, 529 F.3d at 740; see also Wright, 2013 WL 1729105, at *3
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(granting motion to dismiss for failure to prosecute where court’s orders to show cause warned
plaintiff “that her conduct could result in dismissal”).
D.

Appropriateness of Other Sanctions

The less-drastic sanction of dismissal without prejudice is available and appropriate here.
Dismissal 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; see also Mulbah, 261 F.3d at 590–91. Such a sanction is particularly
appropriate in cases of prolonged inactivity and where, as here, the plaintiff appears pro se. See
Schafer, 529 F.3d at 737 (noting that courts apply the four-factor test “more stringently in cases
where the plaintiff’s attorney’s conduct is responsible for the dismissal” (quoting Harmon, 110
F.3d at 367)).
IV.

Recommendation
Considering the above four factors, the Magistrate Judge RECOMMENDS that this action
be DISMISSED WITHOUT PREJUDICE under Federal Rule of Civil Procedure 41(b) and Local
Rule 41.01(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 13th day of May, 2019.
____________________________________
ALISTAIR E. NEWBERN
United States Magistrate Judge
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