Harper v. Houston et al

Filing 47

ORDER OF DISMISSAL. Signed by Chief Judge S. Thomas Anderson on 6/16/2020. (mbm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

RODNEY HARPER,

)
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Plaintiff,
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v.
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TINA HOUSTON in her official and individual )
capacities, and DORIS WARREN in her
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Official and individual capacities,
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Defendants.
)

No. 2:17-cv-02132-STA-cgc

ORDER OF DISMISSAL
______________________________________________________________________________
Before the Court is Plaintiff Rodney Harper’s Pro Se Complaint (ECF No. 1) filed on
February 27, 2017. For the reasons set forth below, the Court dismisses the suit for failure to
prosecute under Federal Rule of Civil Procedure 41(b).
BACKGROUND
Harper’s Complaint alleges the violation of his civil rights and names as Defendants Tina
Houston and Doris Warren. Harper alleges that Houston was a receptionist at the Shelby County
Attorney’s Office in Memphis, Tennessee. While Harper was visiting the office in August 2016,
Houston called security to have Harper removed from the office out of concern over his behavior.
Harper alleges that Warren was the security guard who escorted him out of the building at
Houston’s request. From these premises Harper alleges that both Defendants violated his right to
access the public building.
Administrative Order 2013-05 assigned the United States Magistrate Judge responsibility

for handling all pretrial matters in the case because Harper is acting pro se. The Magistrate Judge
granted Harper’s motion to proceed in forma pauperis on March 8, 2017, and ordered the Clerk to
issue summons and the United States Marshal to serve Defendants with the summons and the
Complaint. The U.S. Marshal served both Defendants on May 3, 2017.
Defendant Tina Houston filed a motion to dismiss for failure to state a claim on May 24,
2017. The Magistrate Judge prepared a report and recommended that the Court grant Houston’s
motion, a recommendation the Court adopted in January 2018. Upon the dismissal of Harper’s
claims against Houston in early 2018, only his claims against Warren remained. But at that time
Warren had still not filed an answer to the Complaint, even though the U.S. Marshal had served
her in May 2017. Almost three more months passed after the dismissal of Harper’s claims against
Houston, and Harper failed to take any further action to prosecute his claims against Warren. So
on April 5, 2018, a little less than a year after Warren had been served, the Magistrate Judge
ordered Harper to show cause as to why the Court should not dismiss his claims against Warren
for lack of prosecution. Harper responded to the show cause order and filed a motion for default
judgment against Warren. 1
The Court subsequently denied Harper’s motion for default judgment without prejudice.
See Order Denying Mot. for Def. J., Mar. 29, 2019 (ECF No. 42). Harper had simultaneously
sought entry of default and a default judgment against Warren. The Court’s order explained the
correct procedure to follow when a defendant was in default, first to obtain an entry of default

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Harper also filed a motion for contempt (ECF No. 38) and motion for hearing on the
contempt issue (ECF No. 39). Harper sought to hold Warren’s employer Allied Universal in
contempt of court. The Magistrate Judge issued a report and recommendation (ECF No. 40) on
the motion for contempt and recommended that the Court deny it. The Court adopted her
recommendation without any objections from Harper on February 20, 2019.
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from the Clerk of Court under Rule 55(a) and then, and only then, to seek default judgment under
Rule 55(b). The Court found that Harper should have first sought and obtained entry of default
against Warren before moving for default judgment. The Court therefore denied the motion
without prejudice to Harper’s right to renew his motion once he had properly sought and obtained
entry of default.
Rather than follow the procedures outlined in the Court’s order, Harper once again allowed
his case to languish. No further docket activity occurred after March 29, 2019. So on January 31,
2020, Harper was ordered for the second time in this case to show cause as to why the Court should
not dismiss the action with prejudice for failure to prosecute. The Court noted that more than ten
months had passed since the Court entered its order explaining the correct process for entry of
default and default judgment. In that interim, Harper had not moved for entry of default against
Warren and had not taken any further action to bring his case to a conclusion. As a result, the
Court ordered Harper to show cause as to why the Court should not dismiss the case and gave him
twenty-one (21) days, or until February 21, 2020, to respond. The Court included the following
admonition in its show cause order: “Failure to respond within [the time allowed] may result in
the dismissal of the case with prejudice and without further notice to the parties.”
Harper did not immediately respond to the show cause order but filed a motion to issue a
subpoena (ECF No. 44, Feb. 18, 2020) instead. Harper stated that he was attempting to identify a
security guard who like Warren worked at the Vasco A. Smith Administration Building where the
Shelby County Attorney’s Office is located. But Harper did not show to whom the subpoena
would be directed or what action the subpoena would order that person to take and when. Harper
also did not explain how the identity of the security guard related to his claims against Warren or
why the guard would have any relevant information about his case. And Harper had not addressed
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why a subpoena was necessary to the prosecution of Harper’s claims against Warren, when Harper
had allowed almost three years to pass since Warren was served and almost eleven months to pass
since the Court outlined the correct procedure for Harper to follow if he wanted to obtain entry of
default against Warren. As a result, the Court denied the motion for subpoena without prejudice
on February 20, 2020.
The Court concluded its order denying the motion for subpoena by addressing Harper’s
need to file a show cause response. The Court noted that Harper had filed his motion for the
subpoena before the February 21, 2020 show cause response deadline. However, the motion for
subpoena did actually not show cause as to why Harper had not prosecuted his claims against
Warren and did not demonstrate why he needed more time to obtain entry of default against
Warren. Despite these shortcomings, the Court gave Harper an additional fourteen (14) days in
which to comply with the show cause order. The Court again cautioned Harper that failure to file
a timely response addressed to why Harper had not taken steps to prosecute his claims against
Warren might result in the dismissal of his case with prejudice and without further notice. See
Order Denying Mot. to Issue Subpoena 3-4, Feb. 20, 2020 (ECF No. 45).
Harper has now filed his show cause response (ECF No. 46, Feb. 27, 2020). Harper
essentially stands on the merit of his original motion for default judgment (ECF No. 37). Harper
points out that he addressed the matter to the Clerk of Court as a request for the “entry of default
judgment” against Warren. While Harper acknowledges that the Court denied the motion for
failure to take the correct procedural steps, he maintains that he did, in fact, follow the correct
procedure. Harper also argues that just like the Clerk of Court, the Court could enter default
against Warren for her failure to appear. As far as his claims against Warren, Harper states that
she continues to work as a security guard at the Vasco A. Smith Administration Building, though
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she now works for a different company than the private firm she worked for at the time relevant
to Harper’s suit. Harper has also included photos (ex. A) of a person who he claims is Warren.
Harper does not state why these facts or his photos of Warren are material to his case or why they
show cause as to why the Court should not dismiss the Complaint.
STANDARD OF REVIEW
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). While it speaks of a defendant’s right to request dismissal, Rule
41(b) does not abridge a district court’s inherent authority to dismiss a plaintiff’s case with
prejudice for the plaintiff’s failure to prosecute it. Link v. Wabash R. Co., 370 U.S. 626, 629
(1962). The Supreme Court has remarked that this inherent authority “is necessary in order to
prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars
of the District Courts.” Id. at 629–30; see also Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 363
(6th Cir. 1999) (stating that the inherent authority to dismiss a case “is available to the district
court as a tool to effect management of its docket and avoidance of unnecessary burdens on the
tax-supported courts and opposing parties”).
District courts enjoy substantial discretion in determining whether dismissal is
appropriate. Knoll, 176 F.3d at 363; Harmon v. CSX Transp., Inc., 110 F.3d 364, 366 (6th Cir.
1997). When considering dismissal for failure to prosecute, a court should weigh the following
factors: “(1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether the
adversary was prejudiced by the dismissed party’s conduct; (3) whether the dismissed party was
warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions
were imposed or considered before dismissal was ordered.” Carpenter v. City of Flint, 723 F.3d
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700, 704 (6th Cir. 2013). A district court should not dismiss for failure to prosecute unless there
is a “clear record of contumacious conduct by the plaintiff.” Wu v. T.W. Wang, Inc., 420 F.3d 641,
643 (6th Cir. 2005).
ANALYSIS
The Court holds that dismissal of Harper’s claims for failure to prosecute is justified. The
procedural history of the case evidences a pattern of delay and a lack of diligence on Harper’s part
in pursuing his claims against Warren. Harper filed suit and obtained service on Warren over three
years ago. Based on the fact that Warren was served May 3, 2017, Warren’s responsive pleading
was due no later than May 25, 2017. See Fed. R. Civ. P. 12(a)(1)(A)(i) (requiring a defendant to
serve an answer within 21 days after being served with the summons and complaint). Once
Warren’s responsive pleading deadline passed (and at all times since then), Harper could have
easily requested entry of default against Warren at any time.
But that has not happened, despite two different show cause orders to spur Harper into
action and another order spelling out the correct process for obtaining entry of default. The first
show cause order (ECF No. 34) in the case came when Harper allowed almost eleven months to
pass after Warren’s deadline to file an answer. The Magistrate Judge’s April 2018 show cause
order put Harper on notice of his need to prosecute his claims against Warren and cautioned Harper
about the possibility of dismissal for his failure to prosecute. Show Cause Order 1, Apr. 5, 2018
(ECF No. 34). Harper responded to the show cause order and explained that he was moving to
hold Warren’s employer, Allied Universal, in contempt and that he was seeking “entry of default
judgment” against Warren. Pl.’s Show Cause Resp. 2, May 7, 2018 (ECF No. 36). But those were
actions Harper took after the show cause order issued; Harper never actually explained what action
he had taken in the intervening months or why he had allowed eleven months to pass before
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prosecuting his claims against Warren.
The Court ultimately denied the motion for default judgment for Harper’s failure to take
the correct steps under Federal Rule of Civil Procedure 55. But the Court denied the motion
without prejudice to Harper’s right to re-file it. While the Court pointed out the irregularity of
seeking entry of default and default judgment at the same time, the Court outlined the correct
process required to have the Clerk enter Warren’s default first. Rather than comply with the
procedural rules and simply file a proper motion for entry of default, Harper once more waited to
act, this time ten months with no further effort to move the case forward. The Court denied the
motion for default judgment on March 29, 2019. No activity occurred in the case for the rest of
2019. That delay occasioned the second show cause order (ECF No. 43), which the Court issued
January 31, 2020.
Since the Court issued the second show cause order in January 2020, Harper has filed a
motion to issue a subpoena and a show cause response. Harper’s motion failed to comply with the
most basic requirements for a Rule 45 subpoena. Perhaps more important, the motion did not
show why a subpoena was needed at this stage of the case before Harper could take the ministerial
step of having the Clerk enter default against Warren. Harper’s show cause response does not fare
much better. Harper argues that contrary to the Court’s January 2020 show cause order, 2 Harper
did request “entry of default judgment.” Harper appears to conflate entry of default under Rule

2

To the extent that Harper now seeks reconsideration of the Court’s order denying his
motion for default judgment, Harper has not demonstrated cause for the Court to revise its decision
almost a year later. See Local R. 7.3(b) (permitting a party to seek revision of an order if the party
shows “(1) a material difference in fact or law from that which was presented to the Court before
entry of the interlocutory order . . . ; or (2) the occurrence of new material facts or a change of law
occurring after the time of such order; or (3) a manifest failure by the Court to consider material
facts or dispositive legal arguments that were presented to the Court before such interlocutory
order.”).
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55(a) with default judgment under Rule 55(b). This is a distinction the Court’s order denying
Harper’s motion for default judgment carefully explained last March: “Prior to obtaining a default
judgment under either Rule 55(b)(1) or Rule 55(b)(2), there must be an entry of default as provided
by Rule 55(a).” Order Denying Mot. for Def. J. 2 (quoting 10A Charles Alan Wright et al., Federal
Practice and Procedure § 2682). Harper’s misunderstanding of Rule 55 or his misreading of the
Court’s order does not excuse his failure to follow the Federal Rules of Civil Procedure. As the
Sixth Circuit has repeatedly emphasized, “pro se litigants are not exempt from the
Federal Rules of Civil Procedure,” Reese v. Ohio Dep’t of Rehabilitation and Corr., No. 17-3380,
2018 WL 4998188, at *2 (6th Cir. June 21, 2018) (citing Wells v. Brown, 891 F.2d 591, 594 (6th
Cir. 1989), even where the pro se party “may not have fully understood” what the rules required.
In re Sharwell, 129 F.3d 1265, 1997 WL 681509, at *1 (6th Cir. Oct. 30, 1997) (citing Jourdan v.
Jabe, 951 F.2d 108, 110 (6th Cir.1991)).
In sum, Harper waited eleven months from Warren’s failure to file an answer and then
another ten months from the denial of his motion for default judgment before taking any further
action to prosecute his claims. After a total of 21 months of inaction, two show cause orders, and
an order outlining the straightforward procedural steps to have default entered, Harper has still not
taken action to prosecute his claims against Warren. The Court finds that dismissal of Harper’s
claims against Warren is now required to prevent further delay and remove this case from the
Court’s docket. Link, 370 U.S. at 629–30.
The balance of the factors for the Court to consider weighs in favor of involuntary
dismissal. The first factor, Harper’s willfulness, bad faith, or fault, weighs against him. While the
Court has no reason to find that Harper has acted willfully or in bad faith, he bears the fault for 21
months of delay in this case caused by his failure to act and in particular in the more than one year
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that has elapsed since the Court denied his motion for default judgment. It bears emphasis that
Harper had only to file a motion for entry of default under Rule 55(a) to prosecute his claims
against Warren. Harper chose instead to raise frivolous issues, first seeking a contempt sanction
against Warren’s employer, who is not a party to this action, and more recently by filing a meritless
motion for a subpoena against an unidentified party.
Moreover, Harper was clearly on notice that his failure to prosecute his case against Warren
might result in the dismissal of the action without a further opportunity to be heard. “Prior notice,
or the lack thereof, is a key consideration when determining whether a district court abuses its
discretion in dismissing a case pursuant to Rule 41(b).” United States v. $506,069.09 Seized From
First Merit Bank, 664 F. App’x 422, 430 (6th Cir. 2016) (citations and internal punctuation
omitted). Both the Magistrate Judge’s April 2018 show cause order and the Court’s January 2020
show cause order cautioned Harper that his failure to respond to the orders might result in
dismissal. What is more, the Court’s February 20, 2020 order denying Harper’s motion for a
subpoena noted that he had not addressed the most recent show cause order and sua sponte gave
Harper more time to respond. The Court’s order concluded with the following admonition:
“Failure to file a timely response addressed to why Harper has not taken steps to prosecute his
claims against Warren may result in the dismissal of his case with prejudice and without further
notice.” Order Denying Mot. to Issue Subpoena 3–4, Feb. 20, 2020 (ECF No. 45). Harper’s show
cause response doubled down on his motion for default judgment by asserting that he had complied
with the correct procedures for prosecuting his claims against Warren, even though the Court’s
previous orders had clearly held the opposite. Harper has had notice of the need to prosecute his
claims against Warren and warnings from the Court about the consequences of his failure to do so
since the Magistrate Judge’s April 2018 show cause order, and at the very least since the Court
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denied his motion for default judgment in March 2019.
Finally, the two show cause orders, as well as the Court’s order denying the motion for
subpoena, constitute consideration of less drastic measures prior to dismissal. Dismissal is
appropriate where the action “amounted to failure to prosecute and no alternative sanction would
protect the integrity of pre-trial procedures.” Kemp v. Robinson, 262 F. App’x 687, 692 (6th Cir.
2007) (quoting Carter v. City of Memphis, Tenn., 636 F.2d 159, 161 (6th Cir. 1980)). The two
show cause orders and the Court’s order granting Harper more time to file a show cause response
each gave Harper an opportunity to avoid the sanction of dismissal. Therefore, the Court finds
that all of these considerations counsel in favor of dismissal.
This just leaves the question of whether Harper’s actions have prejudiced Warren. The
Court has no reason to find that Warren has suffered any prejudice based on Harper’s failure to
press his claims against her. Not only did Warren fail to answer by the pleading deadline, she has
never answered or otherwise appeared to defend herself in this matter in the more than thirty-seven
(37) months since the Marshal served her with the Complaint. Despite Warren’s obvious default,
Harper continued to certify to the Court that he was serving Warren with copies of most if not all
of his filings with the Court, including his most recent show cause response. It is clear to the Court
that Warren has at all times been on notice of Harper’s claims against her. Although this reason
weighs against the dismissal of Harper’s suit for failure to prosecute, it does not overcome the
weight of the other factors that support dismissal.
CONCLUSION
The Court finds that Harper has failed to prosecute his claims against Warren in the three
years since the U.S. Marshal served her with a summons and the complaint. Therefore, Harper’s
Complaint is hereby dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure
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41(b). The Clerk of Court is directed to enter judgment.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: June 16, 2020.

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