# McCommon v. Robinson

> District Court, E.D. Tennessee · December 20, 2021

URL: https://www.frixlaw.com/law-library/cases/10434714

## Case

- **Court:** District Court, E.D. Tennessee
- **Decided:** December 20, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

ELTON MCCOMMON, )
)
Plaintiff, )
)
v. ) No. 3:21-CV-355-DCLC-HBG
)
BRANDON ROBINSON, B. LOPEZ, )
CORP. BROWN, MIKE PARRIS, and )
OFFICER MORGAN, )
)
)
Defendants. )

MEMORANDUM OPINION
This is a prisoner’s pro se complaint for violation of 42 U.S.C. § 1983. On October 21,
2021, the Court entered an order providing that Plaintiff would have thirty days from the date of
entry of that order to file the required documents to proceed in forma pauperis and notifying
Plaintiff that if he failed to timely file those documents, the Court would presume that he is not a
pauper, assess the full amount of fees, and order the case dismissed for want of prosecution [Doc.
4 p. 1]. More than thirty days have passed, and Plaintiff has not filed the required documents to
proceed in forma pauperis or otherwise communicated with the Court. Accordingly, for the
reasons set forth below, Plaintiff’s motion for leave to proceed in forma pauperis [Doc. 1] will be
DENIED, Plaintiff will be ASSESSED the $400 filing fee, and this action will be DISMISSED
pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
Rule 41(b) of the Federal Rules of Civil Procedure gives this Court the authority to dismiss
a case “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order.” Fed. R.
Civ. P. 41(b). The Court examines four factors when considering dismissal under this Rule:
(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).
As to the first factor, the Court finds that Plaintiff’s failure to timely file the required in
forma pauperis documents was due to Plaintiff’s willfulness or fault. Specifically, it appears that
Plaintiff received the Court’s order requiring him to file the relevant documents but chose not to
comply. As to the second factor, the Court finds that Plaintiff’s failure to comply with the Court’s
order has not prejudiced Defendants, as they have not been served. As to the third factor, as noted
above, the Court’s order requiring Plaintiff to file the relevant in forma pauperis documents
warned him that failure to timely comply would result in dismissal of this action [Doc. 4 p. 1].
Finally, as to the fourth factor, the Court finds that alternative sanctions are not warranted, as
Plaintiff seeks to proceed in forma pauperis herein and has failed to comply with the Court’s clear
instructions. On balance, the Court finds that these factors support dismissal of this action under
Rule 41(b).
The Court also notes that, “while pro se litigants may be entitled to 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 layperson can
comprehend as easily as a lawyer.” Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991). Nothing
about Plaintiff’s pro se status prevented him from complying with the Court’s order, and Plaintiff’s
pro se status does not mitigate the balancing of factors under Rule 41(b).
Accordingly, Plaintiff’s motion for leave to proceed in forma pauperis [Doc. 1] will be
DENIED, Plaintiff will be ASSESSED the filing fee of $400.00, and this action will be
DISMISSED. The custodian of Plaintiff’s inmate trust account will be DIRECTED to submit to
the Clerk, U.S. District Court, 800 Market Street, Suite 130, Knoxville, Tennessee 37902, twenty
percent (20%) of Plaintiff’s preceding monthly income (or income credited to his trust account for
the preceding month), but only when such monthly income exceeds $10.00, until the full filing fee
of $400.00 has been paid to the Clerk’s Office. McGore v. Wrigglesworth, 114 F.3d 601, 607 (6th

Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007).
To ensure compliance with the fee-collection procedure, the Clerk will be DIRECTED to
provide a copy of this memorandum opinion and the accompanying order to the Attorney General
for the State of Tennessee, the custodian of inmate trust accounts at Plaintiff’s current facility, and
the Court’s financial deputy. This order shall be placed in Plaintiff’s institutional file and follow
him if he is transferred to another correctional facility.
The Court CERTIFIES that any appeal from this action would not be taken in good faith.
Fed. R. App. P. 24.
AN APPROPRIATE JUDGMENT ORDER WILL ENTER.

ENTER:
SO ORDERED:
s/Clifton L. Corker
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10434714. Public record. Not legal advice.