Bumpus v. Howard

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

PATRICK BUMPAS, #448747, ) A/K/A ZAKIYA ‘KONDO’ MIWINYI ) Plaintiff, ) ) v. ) Case No. 3:19-cv-1081 ) Judge Richardson / Frensley ROBERT HOWARD, et al., ) Defendants. )

REPORT AND RECOMMENDATION Pending before the Court is the Defendants’ Motion to Dismiss (Docket No. 161) and supporting memorandum of law (Docket No. 162). The Plaintiff has not responded to the Motion to Dismiss. For the reasons set forth herein, the undersigned recommends that the Defendants’ Motion to Dismiss be GRANTED and the matter be DISMISSED WITHOUT PREJUDICE. BACKGROUND This is an action brought by the pro se Plaintiff, a state prisoner at the Trousdale Turner Correctional Center (“TTCC”) in Hartsville, Tennessee under 42 U. S. C. §1983 for violations of his constitutional rights related to the conditions of his incarceration. Docket No. 1. On initial review, several of Plaintiff’s claims were allowed to proceed including First Amendment claims, and Eighth Amendment deliberate-indifference claims and conditions-of-confinement claims. Docket No. 8. The Plaintiff continued to vigorously prosecute this action after successfully obtaining service in the case. The Court entered a scheduling order in this matter on January 14, 2022, which included among other deadlines, a deadline for completing discovery in the case. Docket No. 153. On August 29, 2022, the Defendants filed the instant Motion to Dismiss requesting that the action be dismissed for failure to prosecute and failure to comply with the Court’s scheduling order. The Defendants assert that the Plaintiff is no longer incarcerated at the Whiteville Correctional Facility and has not apprised the Court or counsel of his current address. Docket No. 162. Defendants note that the Plaintiff understood his need to keep the Court and counsel apprised of his current address, given that he had previously filed a notice of change address in this matter when he was transferred to the Whiteville facility. Id. at p. 2. Defendants contend that the Plaintiff’s failure to comply with the

Court’s order and Local Rules of Court will prejudice them if they are forced to expend significant time and resources to prepare a motion for summary judgment if the Plaintiff has no desire or intention to participate in the proceedings. Id. They further note that dismissal without prejudice is an appropriate remedy under the circumstances of this case. Id. LAW AND ANALYSIS A. Legal Standard. Federal Rule of Civil Procedure 41(b) “confers on district courts the authority to dismiss an action for failure of a Plaintiff to prosecute the claim or comply with the Rules or any order of the Court. Schafer v. City of Defiance Police Department, 529 F. 3d 731, 736 (6th Cir. 2008)(citing Knoll v. AT & T, 176 F. 3d 359, 362-3 (6th Cir. 1999)); Carpenter v. City of Flint, 723 F. 3d 700, 704 (6th

Cir. 2013)(“It is well settled that a district court has the authority to dismiss sua sponte a lawsuit for failure to prosecute.”). Similarly, this Court’s Local Rules provides that “[c]ivil suits that have been pending for an unreasonable period of time without any action having been taken by any party may be summarily dismissed . . . without prejudice to refile or to move the Court to set aside the order of dismissal for just cause.” Local Rule 41.01(a)(dismissal for unreasonable delay. Dismissal for failure to prosecute is a tool for district courts to manage their dockets and avoid unnecessary burdens on opposing parties and the judiciary. See Schafer, 529 F. 3d at 736 (quoting Knoll, 176 F. 3d at 363). The Court considers four factors in determining whether dismissal under Rule 41(b) is

2 appropriate: (1) the willfulness, bad faith, or fault of the plaintiff; (2) whether the opposing party has been prejudiced by the plaintiff’s conduct; (3) whether the plaintiff was warned that failure to cooperate could lead to dismissal; and (4) the availability and appropriateness of other, less drastic sanctions. Schafer v. City of Defiance Police Dep’t, 529 F. 3d 731, 737 (6th Cir. 2008). A dismissal for failure to prosecute under Rule 41(b) constitutes an adjudication on the merits unless the

dismissal order states otherwise. Fed. R. Civ. P. 41(b). The Court of Appeals for the Sixth Circuit has noted, however, that dismissal under Rule 41(b) is a “harsh sanction” and should only apply in extreme situations where there is a “clear record of delay or contumacious conduct by the plaintiff.” Carter, 636 F. 2d at 161, quoting Silas v. Sears, Roebuck & Co., Inc., 586 F. 2d 382, 385 (5th Cir. 1978). Rule 41(b) of the Federal Rules of Civil Procedure authorizes the involuntary dismissal of an action if a Plaintiff fails to prosecute or to comply with an order of the Court. See, Jourdan v. Jabe, 951 F. 2d 108, 109 (6th Cir., 1991). “[W]hile pro se litigants may be granted some latitude when dealing with sophisticated legal issues, acknowledging their lack of formal training, there is

no cause for extending this margin to straightforward procedural requirements that a lay person can comprehend as easily as a lawyer.” Id. “[T]he lenient treatment of pro se litigants has limits.” Pilgrim v. Littlefield, 92 F. 3d 413, 416 (6th Cir. 1996). When a pro se litigant fails to comply with an easily understood court-imposed deadline, there is no basis for treating that party more favorably than a party who is represented. Id. Additionally, Courts have an inherent power “acting on their own initiative, to clear their calendars of cases that have remained dormant because of inaction or dilatoriness of the party seeking relief.” Link v. Wabash Railroad Co., 370 U. S. 626, 630 (1962). This is not a case of a plaintiff simply filing documents past deadlines or filing inadequate

3 briefs. See Mulbah v. Detroit Bd. of Educ., 261 F. 3d 586, 593-94 (6th Cir. 2001) (finding that the district court abused its discretion by granting a motion to dismiss for failure to prosecute). Giving due consideration to each of the factors, the Court finds that dismissal for failure to prosecute is an appropriate and necessary sanction, as no alternative sanction “would protect the integrity of pre- trial procedures.” Carter v. City of Memphis, 636 F. 2d 159, 161 (6th Cir. 1980).

B. The Case at Bar The undersigned finds that dismissal under Rule 41(b) of the Federal Rules of Civil Procedure is appropriate because the four relevant factors, considered under the “relaxed” standard for dismissal without prejudice show a record of delay, refusal to advance the case an,d failure to comply with the Court’s orders by the Plaintiff. 1. Bad Faith, Willfulness, or Fault A plaintiff’s actions demonstrate bad faith, willfulness, or fault where they “display either an intent to thwart judicial proceedings or a reckless disregard for the effect of [plaintiff’s] conduct on those proceedings.” Wu v. T.W. Wang, Inc., 420 F. 3d 641, 643 (6th Cir. 2005) (quoting Mulbah, 261 F. 3d at 591(6th Cir 2001)). Although there is no indication that the Plaintiffs’ failure to file a

response to the defendants’ motion to dismiss by the deadline was driven by bad faith, he is still “at fault for failing to comply with the Court’s Order[ ].” Malott v. Haas, 2017 WL 1319839, at *2 (E.D. Mich. Feb. 8, 2017), report and recommendation adopted by 2017 WL 1244991 (E.D. Mich. Apr. 5, 2017); see id. (finding that first factor weighed in favor of dismissal where plaintiff had failed to respond to the defendants’ summary judgment motion, despite receiving additional time to do so, and had failed to respond to the court’s show-cause orders). This factor weighs in favor of dismissal. 2. Prejudice The Sixth Circuit has held that “[a] defendant is prejudiced by a plaintiff’s dilatory conduct

4 if the defendant is ‘required to waste time, money, and effort in pursuit of cooperation which [the plaintiff] was legally obligated to provide.’” Carpenter, 723 F. 3d at 707 (second alteration in original) (quoting Harmon v. CSX Transp., Inc., 110 F. 3d 364, 368 (6th Cir. 1997)); see also Schafer, 529 F. 3d at 739 (same). Such prejudice typically arises in the discovery context. See, e.g., Harmon, 110 F. 3d at 368 (finding prejudice where plaintiff failed to respond to defendant’s

interrogatories and a related motion to compel); Wright v. City of Germantown, 2013 WL 1729105, at *2 (W. D. Tenn. Apr. 22, 2013) (finding prejudice where defendant “expended time and money pursuing [plaintiff’s] required initial disclosures and deposition testimony”). Notably, time and effort spent on “typical steps in the early stages of litigation[,]” such as answering a complaint or filing pretrial motions to advance the defendant’s position, are not actions “necessitated by any lack of cooperation” and therefore do not weigh in favor of dismissal for failure to prosecute. Schafer, 529 F. 3d at 739. The Sixth Circuit explained in Schafer v. City of Defiance Police Department that “[i]f such efforts . . . [were] alone sufficient to establish prejudice,” for the purpose of Rule 41(b), “then every defendant who answers a complaint and responds minimally to a lawsuit would be able

to claim prejudice[,]” a “result [that] would defy common sense.” 529 F. 3d at 740. Here, the defendant filed a motion to dismiss (Docket No. 163). The Plaintiff’s failure to take any steps to advance the litigation does prejudice the Defendants. All parties are entitled to a just and prompt resolution of their cases. The failure to advance litigation, as the Plaintiff has here, prejudices the parties and reflects the type of situation where the Court should intervene. The failure of a party to respond to dispositive motions deprives the Court of that party’s opposition, reflects a lack of interest in the litigation and forces the Court to address matters without the benefit of the nonmoving party’s advocacy. Thus, this factor weighs in favor of dismissal.

5 3. Prior Notice Whether a party was warned that failure to cooperate could lead to dismissal “is a ‘key consideration’” in the Rule 41(b) analysis. Schafer, 529 F. 3d at 740 (quoting Stough, 138 F. 3d at 615). In the Court’s scheduling order the Parties were explicitly ordered to comply with the Local Rules that they were to keep both Court and opposing counsel informed of their current address.

Docket No. 153. The Order likewise warned the Parties that a failure to do so may result in a recommendation that the action may be dismissed for failure to prosecute or for failure to comply with the Court’s Order This factor weighs in favor of dismissal. 4. Appropriateness of Other Sanctions The less-drastic sanction of dismissal without prejudice is available and appropriate here. Dismissal without prejudice balances the Court’s interest in “sound judicial case and docket management” with “the public policy interest in the disposition of cases on their merits.” Muncy, 110 F. App’x at 557 n. 5; see also Mulbah, 261 F. 3d at 590–91. That is so even though the defendants have filed a motion to dismiss. See Watsy v. Richards, No. 86-1856, 1987 WL 37151, at *1 (6th Cir.

Apr. 20, 1987) (affirming dismissal of action for failure to prosecute where plaintiff had not provided the court with a current mailing address or responded to the defendants’ motion dismiss despite a sixty-day extension); Thomas-Wilson v. Green Tree Servicing LLC, No. 3:14-cv-01968, 2016 WL 4775738, at *1 (M.D. Tenn. Jan. 15, 2016) (dismissing pro se plaintiff’s claims without prejudice for failure to prosecute and finding defendants’ pending motion for summary judgment moot). Such a sanction is particularly appropriate in cases of prolonged inactivity and where, as here, the plaintiff appears pro se. See Schafer, 529 F. 3d at 737 (noting that courts apply the four-factor test “more stringently in cases where the plaintiff’s attorney’s conduct is responsible for the dismissal.” Id. (quoting Harmon, 110 F. 3d at 367)).

6 All four factors set forth above weigh in favor of dismissal of this case. While dismissal under Rule 41(b) is a “harsh” sanction. Plaintiffs have been given every opportunity to participate in this litigation and have chosen not to do so. The Plaintiffs have been given ample opportunity to cure the defects and specifically advised that their failure to cooperate and comply with the Court’s orders could lead to dismissal. No further less drastic sanction would be appropriate in this case. For the foregoing reasons, the undersigned RECOMMENDS that the Motion to Dismiss (Docket No. 161) be GRANTED and this matter be DISMISSED WITHOUT PREJUDICE under Rule 41(b) for failure to prosecute and for failure to comply with the Court’s orders. Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14) days from receipt of this Report and Recommendation in which to file any written objections to this Recommendation with the District Court. Any party opposing said objections shall have fourteen (14) days from receipt of any objections filed in this Report in which to file any response to said objections. Failure to file specific objections within fourteen (14) days of receipt of this Report and Recommendation can constitute a waiver of further appeal of this Recommendation. Thomas v. Arn, 474 US. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985), reh’g denied, 474 U.S. 1111 (1986). — 2 Xe hike can United States Magistrate Judge