Lee v. Brown

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

TYRONE HIAWATHA LEE, )

Plaintiff, ) Case No. 7:20-cv-00600

)

v. )

) By: Michael F. Urbanski

STACY Y. BROWN, et al., ) Chief United States District Judge

Defendants. )

MEMORANDUM OPINION

Tyrone Hiawatha Lee, a Virginia inmate proceeding pro se, filed this civil rights

action under 42 U.S.C. § 1983, along with a partial application to proceed in forma pauperis

(“IFP”). For the following reasons, the case will be dismissed without prejudice for failure

to comply with prior orders.

Background

On October 28, 2020, the court denied Lee’s IFP request and dismissed the action

without prejudice pursuant to the “three strikes” provision of 28 U.S.C. § 1915(g). Lee

subsequently filed a motion for reconsideration. That motion was granted on May 12, 2022,

and the case was reinstated to the active docket. In a separate conditional filing order entered

that same day, Lee was directed to submit a completed consent form for collection of the

filing fee, as required by 28 U.S.C. § 1915(b). See 28 U.S.C. § 1915(b)(1) (“Notwithstanding

subsection (a), if a prisoner brings a civil action or files an appeal in forma pauperis, the

prisoner shall be required to pay the full amount of a filing fee.”). The order warned that

failure to return the consent form within twenty days would result in the dismissal of the

action without prejudice. See ECF No. 15 at 1–2.

Lee did not comply with the conditional filing order. Instead, he filed a motion for

relief from the order, in which he objected to being required to consent to payment of the

filing fee. That motion was denied on June 17, 2022, and Lee was directed to return the

consent form to the court within fourteen days. He was expressly warned that “[f]ailure to

comply with this order will result in the dismissal of this action without prejudice.” ECF

No. 19 at 2. The fourteen-day period has expired, and Lee has not returned the consent

form.

Discussion

“The Federal Rules of Civil Procedure recognize that courts must have authority to

control litigation before them, and this authority includes the power to order dismissal of

an action for failure to comply with court orders.” Ballard v. Carlson, 882 F.2d 93, 95 (4th

Cir. 1989) (citing Fed. R. Civ. P. 41(b)). “Given the inherent judicial authority to make such

dismissals, a court may, in appropriate circumstances, enter such a dismissal sua sponte,

even absent advance notice of the possibility of dismissal.” Attkisson v. Holder, 925 F.3d

606, 625 (4th Cir. 2019) (internal quotation marks and citation omitted). The propriety of

an involuntary dismissal ultimately depends on the particular circumstances of the case.

Ballard, 882 F.2d at 95.

Under the circumstances presented here, the court finds that dismissal is appropriate.

Despite receiving another opportunity to return the required consent form, Lee has not

complied with the court’s directions. He was expressly warned on two occasions that failing

to return the consent form within the time provided would be cause for dismissal of the

action without prejudice. Consequently, Lee’s noncompliance warrants dismissal. See

Ballard, 882 F.2d at 96 (finding that dismissal was the appropriate sanction where the pro se

litigant disregarded a court order despite being warned that failure to comply would result

in dismissal).

Conclusion

For the reasons stated, this action will be dismissed without prejudice for failure to

comply with prior orders. An appropriate order will be entered.

Entered: July 8, 2022

Digitally signed by

Michael F. Urbanski

Dee Chief U.S. District Judge

Date: 2022.07.08 15:22:22

-04'00'

Michael F. Urbanski

Chief United States District Judge