Opinion
No. 1:17-cv-00255
01-22-2019
DEREK MORSE, Plaintiff, v. MARION JOSEPH FOWLER, Defendant.
REEVES/STEGER
MEMORANDUM OPINION
This is a pro se prisoner's complaint for violation of 42 U.S.C. §1983. On November 19, 2018, the Court entered an order providing that Plaintiff would have thirty days from the date of entry of that order to file an amended complaint [Doc. 3]. More than thirty-three days have passed and Plaintiff has not complied with the order or otherwise communicated with the Court. Accordingly, for the reasons set forth below, this matter will be DISMISSED due to Plaintiff's failure to prosecute and failure to comply with the Court's orders.
Service of the Court's previous order was made by mail pursuant to Rule 5(b)(2)(C) of the Federal Rules of Civil Procedure. Accordingly, Plaintiff had an additional three days to comply with the order. Fed. R. Civ. P. 6(d).
Rule 41(b) of the Federal Rule of Civil Procedure gives this Court the authority to dismiss a case for "failure of the plaintiff to prosecute or to comply with these rules or any order of the court." See, e.g., Nye Capital Appreciation Partners, L.L.C. v. Nemchik, 483 F. App'x 1, 9 (6th Cir. 2012); Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 362-63 (6th Cir. 1999). The Court examines four factors when considering dismissal under Fed. R. Civ. P. 41(b):
(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.Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005); see Reg'l Refuse Sys., Inc. v. Inland Reclamation Co., 842 F.2d 150, 155 (6th Cir. 1988).
As to the first factor, the Court finds that Plaintiff's failure to comply with the Court's previous order is due to Plaintiff's willfulness and/or fault. Specifically, it appears that Plaintiff either received the Court's previous order and failed to comply therewith or did not receive the previous order because he failed to update his address and/or monitor this action as this Court's Local Rule 83.13 requires.
As to the second factor, the Court finds that Plaintiff's failure to comply with the Court's order has not prejudiced Defendant.
As to the third factor, the Court warned Plaintiff that the Court would dismiss this case if he did not timely comply with the Court's previous order [Doc. 3 p. 5].
Finally, as to the fourth factor, the Court finds that alternative sanctions would not be effective. Plaintiff was a prisoner who was granted leave to proceed in forma pauperis in this matter [Id. at 1-2] and he has not pursued this matter since filing his complaint and motion for leave to proceed in forma pauperis more than a year ago.
For the reasons set forth above, the Court concludes that the relevant factors weigh in favor of dismissal of Plaintiff's action pursuant to Rule 41(b). White v. City of Grand Rapids, No. 01-229234, 34 F. App'x 210, 211, 2002 WL 926998, at *1 (6th Cir. May 7, 2002) (finding that a pro se prisoner's complaint "was subject to dismissal for want of prosecution because he failed to keep the district court apprised of his current address"); Jourdan v. Jabe, 951 F.2d 108 (6th Cir. 1991). Accordingly, this action will be DISMISSED for want of prosecution pursuant to Rule 41(b).
The Court CERTIFIES that any appeal from this action would not be taken in good faith and would be totally frivolous. Fed. R. App. P. 24.
AN APPROPRIATE ORDER WILL ENTER.
ENTER:
/s/ _________
UNITED STATES DISTRICT JUDGE