Jones v. Russell et al

Filing 40

OPINION. Signed by Senior District Judge James P. Jones on 9/7/2021. (Opinion mailed to Pro Se Party via US Mail)(slt)

Case 7:21-cv-00019-JPJ-PMS Document 40 Filed 09/07/21 Page 1 of 4 Pageid#: 213

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION

ALVIN L. JONES, SR.,

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Plaintiff,
v.
SUPERINTENDANT BOBBY
RUSSELL, ET AL.,
Defendants.

Case No. 7:21CV00019
OPINION
JUDGE JAMES P. JONES
Senior United States District Judge

Alvin L. Jones, Sr., Pro Se Plaintiff.
The plaintiff, Alvin L. Jones, Sr., a Virginia inmate proceeding pro se, filed
this civil rights action under 42 U.S.C. § 1983 in January of 2021. The defendants
have responded with a Motion to Dismiss, ECF No. 28, arguing that the case fails to
state a claim. The court notified Jones of defendants’ motion on July 29, 2021,
granting him twenty-one days to respond. The court’s notice warned Jones that
failure to respond to the motion within the allotted time would be interpreted as a
loss of interest in prosecuting the case and would result in dismissal of the case
without prejudice.
A district court has authority to dismiss an action for failure to prosecute, as
expressly recognized in Rule 41(b). Cleveland v. Astrue, No. 3:11CV678-REP,
2012 WL 4329291, at *2 (E.D. Va. Aug. 23, 2012), report and recommendation

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adopted, No. 3:11CV678-REP, 2012 WL 4329286 (E.D. Va. Sept. 17, 2012) (citing
Link v. Wabash R. Co., 370 U.S. 626, 629–31 (1962) (“The authority of a court to
dismiss sua sponte for lack of prosecution has generally been considered an inherent
power, governed not by rule or statute but by the control necessarily vested in courts
to manage their own affairs so as to achieve the orderly and expeditious disposition
of cases.”)). When considering dismissal for failure to prosecute, the court must take
into account four factors: (1) the plaintiff’s degree of personal responsibility; (2) the
amount of prejudice caused to the defendant; (3) the presence of any drawn-out
history of deliberately proceeding in a dilatory fashion; and (4) the effectiveness of
sanctions less drastic than dismissal. Cleveland, 2012 WL 4329291, at *2 (citing
Hillig v. Commissioner, 916 F.2d 171, 174 (4th Cir. 1990)). While dismissal could
be with prejudice if these factors weigh in defendants’ favor, Rule 41(b) gives the
court discretion to specify that the dismissal is without prejudice. Payne v. Brake,
439 F.3d 198, 204 (4th Cir. 2006).
In addition, Jones notified the court on August 2, 2021, that he had been
released from jail. Therefore, Jones is no longer subject to the provisions of the
Prisoner Litigation Reform Act that allowed him to pay the $350 filing fee via
installments withheld from his inmate trust account, as he had previously consented
to do. A court order entered on August 3, 2021, directed Jones to submit, within ten
days from that date, the filing fee owed and the applicable administrative fee, a total
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of $400, or to otherwise respond to the court. Jones was advised that a failure to
comply within the time limits set out in the order would result in dismissal of this
action without prejudice. Jones responded, stating that he wished to go forward with
his claims in this case and could not prepay the costs, but he did not provide the
necessary documentation to support an application to proceed in forma pauperis.
The clerk’s office forwarded an application form to Jones on August 16, 2021. More
than ten days from that date have elapsed, but Jones has not returned a properly
completed and executed application to proceed in forma pauperis.
The deadline the court set for Jones’s response to defendants’ motion passed
on August 23, 2021. During that time period, Jones has not filed any responsive
pleading addressing the defendants’ arguments. Accordingly, the court finds that
while Jones may be personally responsible for failing to comply with the court’s
order, despite being warned of impending dismissal without prejudice, there is
otherwise no history of plaintiff’s deliberately delaying the case or causing prejudice
to defendants. Therefore, the court concludes that dismissal without prejudice is an
appropriate sanction. Moreover, the time allotted for Jones to pay the filing costs or
to complete and return a proper application to proceed in forma pauperis has passed,
and he has failed to do so. For these reasons, I will dismiss the action without
prejudice.

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A separate final order will be entered herewith.
DATED: September 7, 2021
/s/ JAMES P. JONES
Senior United States District Judge

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