v. Cooper et al, No. 3:2018cv00368 - Document 8 (E.D. Tenn. 2019)
Court Description: MEMORANDUM AND OPINION Signed by District Judge Pamela L Reeves on 3/1/2019. A copy of this M&O has been sent via U.S. Mail to Sterling Cooper.(MDG)
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v. Cooper et al Doc. 8 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE STERLING L. COOPER, ) ) ) ) ) ) ) ) ) Petitioner, v. MIKE PARRISH, Respondent. No.: 3:18-CV-00368 REEVES/GUIYTON MEMORANDUM OPINION This is a pro se prisoner’s petition for habeas corpus relief pursuant to 28 U.S.C. 2254. On January 11, 2019, the Court entered an order providing that Petitioner had thirty days from the date of entry of that order to pay the full filing fee or submit the necessary documents to proceed in forma pauperis [Doc. 7]. More than thirty days have passed since entry of this order and Petitioner has not complied with this order or otherwise communicated with the Court. Accordingly, for the reasons set forth below, this matter will be DISMISSED due to Petitioner’s failure to prosecute and failure to comply with the Court’s orders. Rule 41(b) of the Federal Rule of Civil Procedure gives this Court the authority to dismiss a case for “failure of the plaintiff to prosecute or to comply with these rules or any order of the court.” See, e.g., Nye Capital Appreciation Partners, L.L.C. v. Nemchik, 483 F. App’x 1, 9 (6th Cir. 2012); Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 362–63 (6th Cir. 1999). The Court considers four factors when considering dismissal under Fed. R. Civ. P. 41(b): (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. Dockets.Justia.com Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005); see Reg’l Refuse Sys., Inc. v. Inland Reclamation Co., 842 F.2d 150, 155 (6th Cir. 1988). As to the first factor, the Court finds that Petitioner’s failure to respond to or comply with the Court’s previous order is due to Petitioner’s willfulness or fault. Specifically, Petitioner’s failure to respond to the Court’s order may be willful (if he received the order and declined to respond), or it may be negligent (if he did not receive the order because he failed to update his address and/or monitor this action as required by Local Rule 83.13). Either way, the first factor weighs in favor of dismissal. As to the second factor, the Court finds that Petitioner’s failure to comply with the Court’s order has not prejudiced Respondent. As to the third factor, the Court warned Petitioner that the Court would dismiss the case if Petitioner did not timely comply with the Court’s previous order [Id. at 2]. Finally, as to the fourth factor, the Court finds that alternative sanctions would not be effective. Petitioner was a prisoner seeking to proceed in forma pauperis in this action [Doc. 1] and Petitioner has not complied with the Court’s most recent order. For the reasons set forth above, the Court concludes that the relevant factors weigh in favor of dismissal of Petitioner’s action pursuant to Rule 41(b). White v. City of Grand Rapids, No. 01229234, 34 F. App’x 210, 211, 2002 WL 926998, at *1 (6th Cir. May 7, 2002) (finding that a pro se prisoner’s complaint “was subject to dismissal for want of prosecution because he failed to keep the district court apprised of his current address”); Jourdan v. Jabe, 951 F.2d 108 (6th Cir. 1991). Accordingly, this action will be DISMISSED for want of prosecution pursuant to Rule 41(b). 2 The Court must now decide whether to grant Petitioner a certificate of appealability (“COA”). A COA should issue where a petitioner makes a “substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a district court denies a habeas petition on a procedural basis without reaching the underlying claim, a COA should only issue if “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court is dismissing this petition because Petitioner failed to prosecute this action and did not comply with a Court order, a procedural ground. Reasonable jurists could not find that this dismissal is debatable or wrong. Accordingly, a certificate of appealability shall not issue. The Court CERTIFIES that any appeal from this action would not be taken in good faith and would be totally frivolous. Fed. R. App. P. 24. AN APPROPRIATE ORDER WILL ENTER. E N T E R: _______________________________________ _____ _______________ ___ ____ ___________ UNITED U NITED STATES STA ATES S DISTRICT DIST TRIC CT JUDGE 3
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