Nichols v. County Commission of Cabell County et al

Filing 85

MEMORANDUM OPINION AND ORDER dismissing this action from the docket without prejudice for failure to prosecute pursuant to Federal Rule 41(b). Signed by Judge Robert C. Chambers on 1/30/2019. (cc: counsel of record; Plaintiff at his last known address; any unrepresented parties) (hkl)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
JASON NICHOLS,
Plaintiff,
v.

CIVIL ACTION NO. 3:18-0266

COUNTY COMMISSION OF CABELL
COUNTY, a public corporation,
BETH THOMPSON, in her official capacity
and individually, and
PHYLISS SMITH, in her official capacity
and individually.
Defendants.
MEMORANDUM OPINION AND ORDER
After granting Plaintiff’s Counsel’s Motion to Withdraw, the Court stayed the instant case
for thirty days to allow Plaintiff to find new counsel or proceed pro se. See Order, ECF No. 84.
The Court directed Plaintiff to file a statement of intent to proceed pro se or have counsel enter an
appearance by January 25, 2019. See id. As the Plaintiff has failed to respond to the Court’s Order,
the issue now before the Court is whether Plaintiff has failed to prosecute his civil action. For the
following reasons, the Court finds that Plaintiff has failed to prosecute this case and therefore
DISMISSES the case without prejudice.
I.

Background
Plaintiff, by counsel, filed a complaint with this Court on February 6, 2018, seeking relief

from Defendants Cabell County, Phyllis Smith, and Beth Thompson. Compl., at 1. In his
complaint, Plaintiff alleges the same three claims against all Defendants: (1) violation of 42 U.S.C.

§1983; (2) unlawful retaliation in violation of the West Virginia Whistle-blower Law; and (3) a
West Virginia common law claim for unlawful retaliatory discharge in violation of substantial
public policy, also known as a Harless claim. Id. at 6, 8, 10, 12.
The Court issued a scheduling order in the case, setting trial for May 21, 2019. See
Scheduling Order, ECF No. 22. On December 6, 2018, Plaintiff’s counsel moved to withdraw
from the case, citing Plaintiff’s failure to respond to counsel’s repeated attempts to communicate
with him regarding discovery and deadlines in this case. See Mot. to Withdraw as Counsel, ECF
No. 82. The Court directed Plaintiff to respond within two weeks as to whether he consented or
objected to his counsel’s withdrawal. See Order, ECF No. 83. Plaintiff failed to respond to the
Court’s Order, so the Court granted counsel’s motion to withdraw. See Order, ECF No. 84. In that
Order, the Court directed Plaintiff to file a pro se statement of intent to proceed or to have new
counsel file an appearance with the Court by January 25, 2019. Id. This date has passed without
response.
II.

Discussion
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). This rule solidifies the principle “that courts must have the
authority to control litigation before them.” Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989).
Although the rule does not explicitly provide the power for a court to dismiss a case sua sponte,
district courts have the inherent authority to dismiss a case for failure to prosecute without waiting
for a defendant’s motion. See Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962) (“Neither the
permissive language of the Rule—which merely authorizes a motion by the defendant—nor its
policy requires us to conclude that it was the purpose of the Rule to abrogate the power of courts,

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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.”).
When considering whether to dismiss a case for failure to prosecute, the court should
consider the following four factors: “(1) the plaintiff’s degree of personal responsibility; (2) the
amount of prejudice caused the defendant; (3) the presence of a drawn out history of deliberately
proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic than dismissal.”
Hillig v. C.I.R., 916 F.2d 171, 174 (4th Cir. 1990). These factors, along with the specific factual
circumstances of the case, assist the court in determining whether dismissal is appropriate.
Ballard, 882 F.2d at 95–96. If a party “has ignored an express warning that noncompliance with a
court order will result in dismissal, the district court should dismiss the case.” Bey ex rel. Graves
v. Virginia, 546 F. App’x 228, 229 (4th Cir. 2013) (citing Ballard, 882 F.2d at 95–96).
In the Court’s last Order, the Court directed Plaintiff to file a statement of intent to proceed
pro se or have an attorney file an appearance with the Court. See Order, ECF No. 84. The Court
warned that if Plaintiff failed to take action Defendants could move for appropriate relief. Id.
Although the Order did not directly state that the appropriate relief would be dismissal, the Court
finds that this warning satisfactorily cautioned Plaintiff that noncompliance would result in
unfavorable consequences. The Fourth Circuit’s four-factor test further supports the Court’s
finding that Plaintiff failed to prosecute.
The first factor determines whether Plaintiff is personally responsible for the
noncompliance. Dismissing a case is an inappropriate remedy if the blame falls to a party’s
counsel, rather than to the party itself. See Hillig, 916 F.2d at 174. However, in this case, the Court
has no other evidence to suggest that the blame falls on anyone but Plaintiff. Plaintiff’s counsel
had struggled to communicate with Plaintiff, resulting in the motion to withdraw as counsel. The

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Court has issued two separate orders requiring Plaintiff to individually respond, but Plaintiff failed
to report to the Court. Without other evidence indicating that Plaintiff is blameless in the
noncompliance, the Court must conclude that Plaintiff is personally responsible.
The second factor considers the prejudice to the defendant. Here, the parties progressed
through discovery until communications with Plaintiff broke down. As a result, Plaintiff has failed
to appear for his scheduled deposition on two separate occasions. See Mot. to Withdraw as
Counsel, at 2. If Plaintiff were allowed to continue to ignore court orders, Defendants would
continue to be prejudiced during discovery and preparation for trial. Thus, Plaintiff’s complete
lack of communication with the Court and his prior counsel has caused prejudice to Defendants.
The third factor looks to the history of noncompliance in the case. Here, the Court issued
two orders directed specifically towards Plaintiff. The Court included a reference to Plaintiff’s last
known address in the orders to ensure proper delivery. The Court issued its first order on December
7, 2018, but has not received any communications, in any form, from Plaintiff. Although there is
no evidence in the record that such conduct is deliberate in nature, the complete lack of response
weighs against Plaintiff.
The last factor focuses on other remedies other than dismissal. The Court could issue other
orders to sanction Plaintiff, but the Court does not find that these remedies would be sufficient.
Monetary sanctions and discovery penalties will not force Plaintiff to respond to the Court’s orders
and prosecute this case in a timely fashion. The Court has given Plaintiff two chances to
communicate directly to the Court, and Plaintiff chose to ignore these directives. Considering the
four factors and the failure to respond directly to court orders, the Court finds that the case shall
be DISMISSED for failure to prosecute pursuant to Rule 41(b). The Court raised the failure to

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prosecute issue sua sponte and has no evidence that Plaintiff acted deliberately or in bad faith, so
the Court dismisses the action without prejudice.
III.

Conclusion
Accordingly, the Court finds that Plaintiff has failed to prosecute the case. Pursuant to

Federal Rule 41(b), the Court DISMISSES the action from the docket without prejudice.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record, Plaintiff
at his last known address, 6226 Gary Drive, Huntington, W.V. 25705, and any unrepresented
parties.
ENTER:

January 30, 2019

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE

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