The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
COLUMBIA DIVISION
Jaston A. Oakley, )
)
Plaintiff )
) No. 1:19-cv-00047
v. ) Judge Campbell/Brown
) Jury Demand
Andy Cathey, )
)
Defendants )
TO: THE HONORABLE William L. Campbell.
REPORT AND RECOMMENDATION
For the reasons stated below, the Magistrate Judge
recommends that this case be dismissed without prejudice for
failure to prosecute and to obey court orders, and that any appeal
from the dismissal not be certified as taken in good faith.
BACKGROUND
The Plaintiff filed his case in forma pauperis on June 6,
2019 (Docket Entry 1). After a review by Judge Campbell the
Plaintiff was permitted to proceed in forma pauperis on his claims
of a Fourteenth Amendment Equal Protection claim under Section 1983
against Mr. Cathey in his individual capacity. All other claims
were dismissed. The order specifically stated “He is also
forewarned that his prosecution of this action will be jeopardized
should he fail to keep the clerk’s office informed of his current
address.” (Docket Entry 4).
The Plaintiff returned service packets and service of
process was directed on the Defendants and returned on Sept. 17,
2019. The plaintiff used the Maury Count Jail as his current
address on the summons. (DE 7) The defendant filed an appearance
and answered the complaint on Sept 24, 2019. (DE 9 and 10). Next
the Defendant notified the court that mail sent to the plaintiff at
the Maury County jail which was the last address provided by the
plaintiff was returned as undelivered with the notation:
"Return to Sender, Attempted-Not known, Unable to Forward." (DE
11). Counsel for the defendant also advised the upon checking
with the jail she was advised the plaintiff had been released
from custody and had not provided a forwarding address.
A show cause order was entered for the plaintiff to
appear for a scheduling hearing on October 23, 2019 and the
plaintiff was again warned of the need to have a current address
on file. (DE 12). The plaintiff did not appear at the hearing and
he has not provided the court with a current address. Counsel
again advised the court that the Plaintiff had been releases with
no forwarding address on file. Additionally the Court’s order to
show cause was returned with the notation “released” (DE 14).
LEGAL DISCUSSION
A dismissal with or without prejudice is a drastic remedy
and before the court contemplates dismissing an action under Rule
41(b) the Court must specifically consider:
(1) whether the party’s failure to cooperate is
due to willfulness, bad faith, or fault;
2
(2) whether the adversary was prejudiced by the
dilatory conduct of the party;
(3) whether the dismissed party was warned that
failure to cooperate could lead to dismissal; and
(4) where the less drastic sanctions were imposed
or considered before dismissal was granted.
Tetro v. Elliott Popham Pontiac, 173 F.3d 988 (6th Cir.
1999).
The Plaintiff was warned at the onset of the case that
failure to keep a current could jeopardize his prosecution of the
matter. In this case the Plaintiff has failed to provide the Court
with a current address. His failure to do so appears willful.
Plaintiff failed to attend the scheduled case management conference
on October 23, 2019.
Under these circumstances, the Magistrate Judge believes
that dismissal under Rule 41(b) is appropriate. The Court must be
able to control its docket and to move cases toward resolution. The
District Court has the power to dismiss an action for want of
prosecution to “manage their own affairs so as to achieve the
orderly and expeditious disposition of cases.” Link v. Wabash
Railroad, 370 U.S. 626, 630-31 (1962). The Plaintiff is presently
out of touch with the Court, has failed to attend a scheduled case
management conference or respond to a show cause order. Defendants
are prejudiced in that they are unable to begin discovery. The
court is unable to enter a scheduling order or contact the
Plaintiff.
3
The Magistrate Judge has considered the less drastic
sanctions of dismissal without prejudice rather than dismissal with
prejudice and will recommend the lesser sanction.1
RECOMMENDATION
For the reasons stated above, the Magistrate Judge
recommends that this case be dismissed without prejudice for
failure to obey Court orders and to prosecute. The Magistrate Judge
further recommends that any appeals on this dismissal not be
certified as taken in good faith.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any party has 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 14 days from receipt of any objections filed
in this Report in which to file any responses to said objections.
Failure to file specific objections within 14 days of receipt of
this Report and Recommendation can constitute a waiver of further
appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140 106 S.
Ct. 466, 88 L.Ed.2d 435 (1985), Reh’g denied, 474 U.S. 1111 (1986).
ENTER this 23d day of October, 2019.
/s/ Joe B. Brown
JOE B. BROWN
United States Magistrate Judge
1Even though the dismissal is without prejudice, statute of
limitation issue may prevent a refiling of a similar complaint.
4