NOT RECOMMENDED FOR PUBLICATION File Name: 23a0142n.06
No. 21-5948
UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Mar 22, 2023 DEBORAH S. HUNT, Clerk ) COREY TARVIN, ) Plaintiff-Appellant, ) ON APPEAL FROM THE UNITED ) v. STATES DISTRICT COURT FOR ) THE MIDDLE DISTRICT OF ) CHERRY LINDAMOOD, et al. TENNESSEE ) Defendants-Appellees. ) OPINION ) )
Before: COLE, NALBANDIAN, and READLER, Circuit Judges. NALBANDIAN, J., delivered the opinion of the court in which COLE, J., joined, and READLER, J., joined in the judgment. COLE, J. (pg. 9), delivered a separate concurring opinion. READLER, J. (pp. 10–13), delivered a separate opinion concurring in the judgment only.
NALBANDIAN, Circuit Judge. Corey Tarvin is a legally blind, pro se inmate who filed
suit in federal court after he was stabbed in a Tennessee prison. The district court dismissed his
case for failure to prosecute under Federal Rule of Civil Procedure 41(b). Because the district
court’s order did not account for Tarvin’s several filings on the docket related to his inability to
respond, we vacate and remand for further consideration.
I.
In March 2018, Corey Tarvin filed a pro se complaint against the Tennessee Department
of Corrections, prison officers, and CoreCivic (a private company that runs the relevant prison) in
federal court after a group of gang members attacked and stabbed him in October 2017. He alleged
violations of his First, Eighth, and Fourteenth Amendment rights. He explained to the court in a No. 21-5948, Tarvin v. Lindamood
couple of handwritten letters that he was legally blind and had difficulty participating in the
litigation process. After Tarvin survived screening under the Prison Litigation Reform Act, the
district court appointed counsel to represent him in February 2019. Defendants moved to dismiss,
but the district court allowed Tarvin, represented by counsel, to move forward on several of his
claims.
Soon after, Tarvin asked the court to replace his appointed counsel because of a lack of
results and responsiveness. So Tarvin’s counsel moved to withdraw. And in March 2021, the
district court granted that motion but declined to appoint substitute counsel because no substitute
counsel was available. On June 7, 2021,1 CoreCivic sent Tarvin a set of requests for admission and
a second set of interrogatories. CoreCivic sent Tarvin a deficiency letter on July 20. Two days
later, Tarvin’s mother filed a letter explaining that Tarvin’s correctional facility did not “mail his
mail” and that Tarvin had not received any “paperwork on this case.” (R. 132, Mother’s Letter, p.
1.) On August 10, CoreCivic moved to compel Tarvin’s response to the second set of
interrogatories. A magistrate judge granted that motion and gave Tarvin until August 27 to respond
to the second set of interrogatories.2
On August 25, two days before the magistrate judge’s deadline, Tarvin filed a letter with
the court, dated August 20, explaining that he was “legally blind” and could not “see to read any
small newspaper type print or cursive” and that “CoreCivic and the courts ha[d] [his] medical
1 On December 28, 2020, the Tennessee Department of Corrections (“TDOC”) sent Tarvin a first set of interrogatories. TDOC says that it received his responses. 2 In a letter dated August 12—the same date the magistrate judge’s order came down—Tarvin notified the court that he had been transferred to another facility where another inmate had been assigned to help him. He explained that even though his access to the library, notary, and mailroom was limited, he “immediately start[ed] responding to [his] legal mail.” (R. 143, Motion to Amend, p. 3.) But he explained that all the limitations in the prison prevented him from “get[ting] things done in a timely manner.” (Id.) That letter was not docketed until September 17. 2 No. 21-5948, Tarvin v. Lindamood
records and are aware of this.” (R. 138, Tarvin Filed Accommodation Request #1, p. 1.) He said
that “[w]ithout a qualified and willing helper, [he was] unable to respond to anyone or anything.”
(Id.) He explained that the helpers he had had in the past “didn’t put [his] mail in the mailbox” or
“addressed the envelope with the wrong address[.]” (Id. at 3.) He also said that he had spoken to
the court clerk, who explained “that the defendants haven’t received the response that I mailed
them.” (Id. at 3.) He also said that he had tried to call CoreCivic’s attorney Mr. Tilly but that Mr.
Tilly had not answered.
On August 31, four days after the magistrate judge’s deadline, Tarvin filed another letter
with the court, dated August 24. He reiterated that he was “legally blind” and couldn’t
“comprehend what’s actually taking place.” (R. 140, Tarvin Filed Accommodation Request #2,
p. 1.) He said that he wasn’t “sure of what’s all been filed or amended.” (Id.) He asked if he could
participate in discovery “verbally . . . instead of on paper” due to his “visual impairment.” (Id. at
3.) He explained that he was “not avoiding the participation in this procedure” but that he was
“unable to participate without any help, and, or assistance, due to [him] being visually disable[d].”
(Id. at 4.)
On September 10, CoreCivic moved to dismiss for lack of prosecution under Rule 41(b).
Tarvin did not respond to this motion but filed several other motions with the court between
September 10 and September 17, explaining that inmates had been instructed not to help him.
And on September 30, the district court dismissed Tarvin’s case without prejudice for
failure to prosecute under Rule 41(b). And in doing so, the court applied the four factors relevant
to the Rule 41(b) analysis. Tarvin timely appealed. In his notice of appeal, Tarvin explained that
he didn’t even know about the dismissal until he called the clerk’s office. And he said that he had
replied to CoreCivic’s discovery but that CoreCivic hadn’t received his discovery responses, even
3 No. 21-5948, Tarvin v. Lindamood
though he sent them at the same time that he mailed TDOC its responses, which TDOC had
received, see supra n.2. Further, he said that CoreCivic’s attorney refused Tarvin’s offers to
conduct discovery verbally over the phone. Now, again represented by counsel, he asks us to
reverse the district court’s dismissal as improper under Rule 41(b).
II.
Rule 41(b) allows a district court to dismiss a case “[i]f the plaintiff fails to prosecute or to
comply with [the Federal Rules of Civil Procedure] or a court order[.]” Fed. R. Civ. P. 41(b). And
we give the district court “substantial discretion” in applying Rule 41(b), reviewing only for abuse
of discretion. Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999) (citation omitted).
A district court abuses its discretion when it “fails to explain its reasoning adequately or to
consider the competing arguments of the parties,” Minor v. Comm’r of Soc. Sec., 826 F.3d 878,
883 (6th Cir. 2016) (citation omitted), or when we are left with a “definite and firm conviction that
[it] committed a clear error of judgment,” Trepel v. Roadway Express, Inc., 194 F.3d 708, 716 (6th
Cir. 1999) (citation omitted).
In a Rule 41(b) analysis, the court evaluates four factors: “(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.” Knoll, 176 F.3d at 363 (citation omitted).
And we’ve said that “dismissal of an action for an attorney’s failure to comply [with a court
order] is a harsh sanction which the court should order only in extreme situations showing ‘a clear
record of delay or contumacious conduct by the plaintiff.’” Buck v. U.S. Dep’t of Agric., 960 F.2d
603, 608 (6th Cir. 1992) (quoting Silas v. Sears, Roebuck & Co., 586 F.2d 382, 385 (5th Cir.
4 No. 21-5948, Tarvin v. Lindamood
1978)). “Absent this showing, an order of dismissal is an abuse of discretion; the court is limited
to lesser sanctions designed to achieve compliance[.]” Id. (citing Silas, 586 F.2d at 385). Although
“not without dissent, panels of this court have continued to apply [this] formula in cases where a
party’s attorney fails to appear for a conference or proceeding, or fails to comply with an order.”
Id. Bottom line, the first factor—a finding of bad faith, willfulness, or fault—deserves the most
weight in our review.
And a party who seeks to avoid the sanction of dismissal “has the burden of showing that
his failure to comply was due to inability, not willfulness or bad faith.” United States v. Reyes, 307
F.3d 451, 458 (6th Cir. 2002) (citation omitted).
First factor first. The district court found that Tarvin acted with willfulness and fault
(though not bad faith) because he did not comply with the magistrate judge’s order to respond to
CoreCivic’s interrogatories within the August 27 deadline. The district court explained:
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). Even if Plaintiff’s failure to respond to the CoreCivic Defendants’ discovery and comply with the Court’s order to compel were not motivated by bad faith, Plaintiff’s inaction still reflects “willfulness and fault” for purposes of Rule 41(b). Hatcher v. Dennis, 2018 WL 1586235, at *1 (W.D. Tenn. Mar. 30, 2018) (“[e]ven where there is no clear evidence of bad faith, failure to respond to a show cause order is indicative of willfulness and fault”). This factor supports dismissal.
(R. 149, District Court Order, pp. 3–4.)
So the crux of the district court’s reasoning is that failure to respond to a show-cause order
is per se evidence of willfulness and fault. Since the district court focused on willfulness and fault
rather than bad faith, we’ll do the same. And we think all failures to respond aren’t created equally.
For instance, if a litigant fails to respond solely because she doesn’t want to answer hard discovery
questions, that’s a display of willfulness or fault. See Bryant v. United States ex rel. U.S. Postal 5 No. 21-5948, Tarvin v. Lindamood
Serv., 166 F. App’x 207, 211 (6th Cir. 2006) (“[P]laintiffs must do as much as they can, and
certainly more than they did here, to provide defendants with all relevant discoverable
information.”) On the other hand, when a litigant demonstrates that he can’t comply with a
discovery request, we don’t stick that inability in the bad faith, willfulness, or fault category. See
Reyes, 307 F.3d at 458.
We aren’t sure whether the district court thought Tarvin was able to comply with discovery
requests because the district court didn’t address Tarvin’s letters at all. Nor can we tell what the
district court thought of Tarvin’s suggestion that he had tried to respond to CoreCivic’s request by
mail but that perhaps the qualified helpers had mishandled his outgoing mail. And given his
limitations, Tarvin suggested that he should be able to respond to the requests orally to rectify the
problem (presumably he doesn’t have an extra copy of the alleged written responses lying around
somewhere). (See Reply Br. Br. at 6–7 (explaining that requiring Tarvin to submit a copy “assumes
the availability of the very resources Mr. Tarvin” didn’t have).)
In short, the district court didn’t address Tarvin’s statements that he had previously sent
discovery responses in the mail with the help of a qualified aid (that was later unavailable) and
that he was now seeking to respond orally. And because the district court is best situated to evaluate
the facts concerning Tarvin’s ability to respond to discovery, we think the best course is to vacate
and remand.3
3 To be fair to the district court, Tarvin’s handwritten letters are not a model of clarity. The filings are not responsive to the magistrate judge’s order, nor were they filed as responses to discovery. Plus, Tarvin bears some responsibility for his own predicament because he effectively discharged his appointed attorney—who by all accounts had performed admirably. That said, given Tarvin’s statements, this case—at least on this record—doesn’t present the type of conduct that typically leads to dismissal. 6 No. 21-5948, Tarvin v. Lindamood
As for the other three factors, it doesn’t look like the district court abused its discretion. On
the second factor, failure to respond to discovery requests leads to the “waste [of] time, money,
and effort” on the part of the requesting party, which can constitute prejudice. Harmon v. CSX
Transp., Inc., 110 F.3d 364, 368 (6th Cir. 1997). On the third factor, the magistrate judge warned
in his order granting the motion to compel discovery that failure to comply with CoreCivic’s
discovery request could lead to dismissal of Tarvin’s case. And that’s probably sufficient to satisfy
notice under the third factor. See Schafer v. City of Defiance Police Dep’t, 529 F.3d 731, 742 (6th
Cir. 2008). And on the fourth factor, although the statute of limitations had run, dismissal without
prejudice is a lesser sanction than dismissal with prejudice in light of Tennessee’s savings statute.4
See Moore v. Fields, 464 F.2d 549, 550 (6th Cir. 1972). The parties to the appeal now appear to
agree that the savings statute applies. And even if Tennessee’s savings statute didn’t apply, we’ve
explained that although dismissal without prejudice might be “as harsh a remedy” as dismissal
with prejudice when the statute of limitations has run, we’ve declined to consider it an abuse of
discretion for a district court to dismiss without prejudice simply because the claim would now be
time-barred. In re Love, 3 F. App’x 497, 498 (6th Cir. 2001) (collecting cases).
4 Tennessee’s savings statute provides as follows: If the action is commenced within the time limited by a rule or statute of limitation, but the judgment or decree is rendered against the plaintiff upon any ground not concluding the plaintiff's right of action, or where the judgment or decree is rendered in favor of the plaintiff, and is arrested, or reversed on appeal, the plaintiff, or the plaintiff's representatives and privies, as the case may be, may, from time to time, commence a new action within one (1) year after the reversal or arrest. Actions originally commenced in general sessions court and subsequently recommenced pursuant to this section in circuit or chancery court shall not be subject to the monetary jurisdictional limit originally imposed in the general sessions court. Tenn. Code Ann. § 28-1-105(a). 7 No. 21-5948, Tarvin v. Lindamood
Nevertheless, because the first factor carries so much weight in the Rule 41(b) analysis, we
vacate the district court’s judgment and remand so that the district court may consider Tarvin’s
filings discussing his inability to comply with CoreCivic’s discovery request. In thinking about
Rule 41(b) dismissal again, the district court can reevaluate the other three factors in light of any
new evidence.
VACATED and REMANDED.
8 No. 21-5948, Tarvin v. Lindamood
COLE, Circuit Judge, concurring. I express no opinion on the remaining three factors,
and leave that analysis to the district court upon remand.
9 No. 21-5948, Tarvin v. Lindamood
CHAD A. READLER, Circuit Judge, concurring in the judgment. If Corey Tarvin’s
handling of this case exasperated the district court, it would be easy to see why. Upon receiving
Tarvin’s complaint, the district court recognized that Tarvin, who is legally blind and serving a
life sentence, might have trouble litigating his case pro se. Reading documents, preparing
responses, and understanding court rules would all seemingly be a challenge for Tarvin. Although
it was not required to do so, the district court decided to help Tarvin in prosecuting his case: it
appointed counsel to represent Tarvin. See, e.g., United States v. Silvestre-Gregorio, 983 F.3d
848, 853 (6th Cir. 2020). And the court was especially generous in doing so. It appointed a partner
at a well-equipped Nashville law firm.
For over two years, counsel steered Tarvin’s case through the channels of litigation. She
moved for expedited relief, a motion the district court granted in part. She navigated the case past
defendants’ motion to dismiss. And, at Tarvin’s request, she successfully sought to amend
Tarvin’s complaint—not once, but twice. Not a single rule nor deadline was neglected along the
way.
Yet counsel’s efforts apparently were not enough for Tarvin. With his mother’s assistance,
Tarvin filed multiple complaints against his counsel with the Board of Professional Responsibility
of the Tennessee Supreme Court. He also complained to the district court. In his mother’s words,
Tarvin “needed a real lawyer[,] not [a] public defender[.]” Counsel, Tarvin leveled, had produced
“only negative vibes” and “negative results.” Tarvin even went so far as to accuse counsel and the
district court of “conspir[ing]” to deny him legal assistance.
Unsurprisingly, Tarvin’s attorney moved to withdraw. She explained that despite her two
years of “efforts (which include[d] multiple telephone calls and texts per week—often during the
evenings and weekends), [Tarvin] and his mother continue[d] to file complaints” against her.
10 No. 21-5948, Tarvin v. Lindamood
(Neither the district court nor the Board of Professional Responsibility, it bears noting, has ever
found grounds to issue her any kind of reprimand.) The district court granted counsel’s motion.
In so doing, it noted that the Clerk of Court was unable to obtain substitute counsel to represent
Tarvin. Accordingly, the court advised Tarvin that he was expected to represent himself for the
duration of the litigation if he was otherwise unable to retain an attorney.
As the district court seemingly foresaw at the case’s inception, Tarvin proved unable to
captain his own ship. He missed the deadline to respond to CoreCivic’s interrogatories. And he
subsequently missed the deadline set by the district court in granting CoreCivic’s motion to
compel. Tarvin was not always neglectful of his case. But when he was engaged in the matter,
most of his efforts were dedicated to preparing largely frivolous submissions to the district court.
Those filings included a letter alleging that CoreCivic and the Tennessee Department of Correction
were conspiring to have him killed; a motion to amend the complaint (a third time); a letter stating
that he was transferred to a different facility after he complained about fentanyl being planted in
his food; and a motion to establish a conflict of interest because his current facility was in the
TDOC Commissioner’s hometown.
Noting Tarvin’s failures, CoreCivic moved to involuntarily dismiss the case in accordance
with Federal Rule of Civil Procedure 41(b). As things stood, the district court had few options to
choose from. Dismissal is a significant penalty. Yet it is hard to imagine a lesser sanction that
would have course-corrected the matter. See Harmon v. CSX Transp., 110 F.3d 364, 368 (6th Cir.
1997) (explaining how a district court’s consideration of lesser sanctions is a factor in appellate
review). As experience had demonstrated, Tarvin was unable to competently litigate his case
acting pro se. During the time Tarvin was represented by appointed counsel, the case proceeded
apace. But once Tarvin effectively fired his counsel, his case veered well off track. His actions,
11 No. 21-5948, Tarvin v. Lindamood
which fluctuated between frivolous filings and missing deadlines, unnecessarily burdened the
district court in overseeing Tarvin’s case. Allowing him to continue pro se would only prolong an
already prolonged dispute, likely without a favorable resolution for Tarvin, given his shortcomings
as a pro se litigant. So the district court granted the motion and dismissed the case. But it did so
without prejudice, allowing Tarvin to find counsel and refile his case, if he so chose.
Ordinarily, dismissing a case in this posture would not amount to an abuse of discretion.
See Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991). Tarvin’s conduct reflected aspects of
willfulness, bad faith, and fault, the chief considerations in determining whether dismissal under
Rule 41(b) is appropriate. Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005) (citation
omitted); Majority Op. at 5. To justify dismissal, we look for conduct that is “perverse in resisting
authority” or “stubbornly disobedient.” Carpenter v. City of Flint, 723 F.3d 700, 704–05 (6th Cir.
2013) (cleaned up). Tarvin’s conduct—failing to respond to a discovery request and violating a
court order while flooding the court with frivolous motions—satisfies that standard. See Harmon,
110 F.3d at 368. As those actions demonstrate, Tarvin was “inexcusably unprepared to prosecute
the case,” justifying dismissal. Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 364 (6th Cir. 1999).
True, we customarily are more forgiving of misdeeds committed by pro se litigants. And
there are good reasons for doing so. See Jourdan, 951 F.2d at 110. But “the lenient treatment
generally accorded to pro se litigants has limits.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir.
1996) (citation omitted). One natural limit is in instances where the litigant, like Tarvin, appeared
pro se only because he functionally fired his court-appointed attorney. Viewed in that light,
Tarvin’s pro se status should no longer be “accorded special consideration.” See Jourdan, 951
F.2d at 110 (upholding a Rule 41(b) dismissal against a pro se litigant); see also Steward v. City
of Jackson, 8 F. App’x 294, 296–97 (6th Cir. 2001) (same). At day’s end, Tarvin simply faced the
12 No. 21-5948, Tarvin v. Lindamood
“consequence” of his “decision to proceed pro se” when the district court dismissed his case. Cf.
Wilson v. Parker, 515 F.3d 682, 697 (6th Cir. 2008).
For these reasons, a compelling case can be made for dismissal. Yet while these
considerations likely drove the district court’s decision, the district court did not articulate as much.
For instance, the district court did not explain whether Tarvin’s rebuke of counsel animated the
court’s conclusions. Nor did the court articulate the frivolous nature of Tarvin’s filings. On the
other side of the scale, the district court did not weigh the considerations that might have counseled
against dismissal. In the absence of such findings, I concur in today’s judgment. But with the
benefit of a more fulsome order, one would be hard-pressed to do the same.