Jones v. Allen et al

Filing 31

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-00034-JPJ-PMS Document 31 Filed 09/07/21 Page 1 of 3 Pageid#: 156

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

ALVIN L. JONES, SR.,

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Plaintiff,
v.
SHERIFF TIM ALLEN, ET AL.,
Defendants.

Case No. 7:21CV00034
OPINION
By: 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. 17, arguing that the case fails to
state a claim. The court notified Jones of defendants’ motion on June 22, 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).
After receiving the court’s Notice, Jones moved for and was granted an
extension of time to respond to defendants’ motion — until August 19, 2021. That
response deadline has now passed. 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
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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. Therefore, I will dismiss the action without
prejudice.
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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