Bennett v. Mays, No. 3:2019mc00015 - Document 6 (E.D. Tenn. 2019)

Court Description: MEMORANDUM AND OPINION. The order expressly warned Petitioner that failure to comply with the order would result in the dismissal of this action [Id. at 12]. Despite this warning, Petitioner has failed to comply with the Courts order, and the deadline to do so has passed. Accordingly, for the reasons set forth below, this action will be DISMISSED. Signed by District Judge Curtis L Collier on 9/11/2019. (BDG) Memo mailed to Bennett.

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Bennett v. Mays Doc. 6 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE COREY BENNETT, Plaintiff, v. TONY MAYS, Defendant. ) ) ) ) ) ) ) ) ) No.: 3:19-MC-15-CLC-HBG MEMORANDUM OPINION This is a pro se prisoner’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 [Doc. 1]. On July 23, 2019, the Court entered an order requiring Petitioner to pay the filing fee or submit a completed application to proceed in forma pauperis within thirty (30) days of entry of the order [Doc. 5]. The order expressly warned Petitioner that failure to comply with the order would result in the dismissal of this action [Id. at 1–2]. Despite this warning, Petitioner has failed to comply with the Court’s order, and the deadline to do so has passed. Accordingly, for the reasons set forth below, this action will be DISMISSED. Federal Rule of Civil Procedure 41(b) 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 and/or fault. Specifically, as the Court sent the previous order to the address provided by Petitioner and the United States Postal Service has not returned the Court’s mail, it appears that Petitioner received the Court’s previous order and chose not to respond thereto. As such, this 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 this case if he failed to comply with the Court’s order. Finally, as to the fourth factor, the Court finds that alternative sanctions would not be effective. Petitioner is a prisoner seeking to proceed pro se in this action, and therefore, monetary sanctions are not a viable alternative. For the reasons set forth above, the Court concludes that the relevant factors weigh in favor of dismissal of this action pursuant to Rule 41(b). The Court must also 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). 2 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. /s/ CURTIS L. COLLIER UNITED STATES DISTRICT JUDGE 3

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