United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C. REEVES UNITED STATES DISTRICT JUDGE
Keith Anthony Cates is confined at the Madison County
Detention Center in Richmond, Kentucky. Cates previously sent
a letter to the Court which was docketed as a civil action
for administrative purposes. [Record No. 1] However, he did
not pay the $350.00 filing fee, nor did he file an
application to pay the filing fee in installments under 28
U.S.C. § 1915. In addition, the letter submitted by
Cates is insufficient to constitute a civil Complaint, as it
only states a desire to file a lawsuit but does not make a
request for any particular form of relief. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (A complaint must
contain sufficient factual matter, accepted as true, to
“state a claim to relief that is plausible on its
by Order dated December 22, 2017, the Court Cates of these
deficiencies and provided him with the forms and information
needed to both file a Complaint on the Court-approved form
and to file a motion to pay the filing fee in installments
under 28 U.S.C. § 1915. [Record No. 4] Cates was
instructed that, if he wished to pursue this matter, he must
complete and file the supplied forms within 28 days. Cates
was further warned that this case would be dismissed if he
failed to do so. [Id.]
January 5, 2018, Cates filed a new, handwritten, two-page
“Complaint” [Record No. 6] and a motion to
appoint counsel. [Record No. 5] Contrary to the Court's
clear instructions, the new Complaint was not filed on the
Court-supplied forms, nor does it provide the information
requested by those forms. In addition, Cates has still failed
to pay the $350.00 filing fee and the $50.00 administrative
fee, nor has he filed a motion to pay the filing fee in
installments, as previously directed. As a result the Court
will dismiss the action, without prejudice, for want of
prosecution and for failure to comply with an Order of the
Court. Fed.R.Civ.P. 41(b); Palasty v. Hawk, 15 F.
App'x 197, 199-200 (6th Cir. 2001).
authority of a federal trial court to dismiss a
plaintiff's action for failure to prosecute “is
necessary in order to prevent undue delays in the disposition
of pending cases and to avoid congestion in the calendars of
the District Courts.” Link v. Wabash Rwy. Co.,
370 U.S. 626, 629-630 (1962). See also Carter v. City of
Memphis, Tenn., 636 F.2d 159, 161 (6th Cir. 1980)
(“It is clear that the district court does have the
power under [Fed. R. Civ. P. 41(b)] to enter a sua
sponte order of dismissal.”). In determining
whether to dismiss a case for failure to prosecute, the Sixth
Circuit has directed trial courts to consider:
(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) (quoting Knoll v. American Tel. & Tel.
Co., 176 F.3d 359, 363 (6th Cir. 1999)).
respect to the first and third factors, a court may consider
a party's failure to act in the face of a clear prior
warning from the court that the matter would be dismissed as
an indication of willful noncompliance. Lovejoy v.
Owens, 1994 WL 91814, at *2 (6th Cir. March 21, 1994)
(citing Harris v. Callwood, 844 F.2d 1254, 1256 (6th
Cir. 1988)). Here, Cates failed to comply with the
Court's Order directing him to file his complaint on a
court-supplied form and to either pay the filing fee or file
a motion to pay the filing fee in installments, despite a
clear warning that his failure to do so would result in
dismissal. With respect to the fourth factor, Cates's
incarceration makes the imposition of lesser sanctions, such
as monetary or other penalties, difficult or impracticable.
Thus, evaluating all of these factors, the Court concludes
that dismissal of plaintiff's complaint, without
prejudice, is warranted. Jourdan v. Jabe, 951 F.2d
108, 110 (6th Cir. 1991) (a pro se litigant is not
afforded special consideration for failure to follow readily
comprehended court orders).
it is hereby
Cates's Complaint [Record Nos. 1, 6] is
DISMISSED without prejudice for failure to
prosecute and for failure to comply with an Order of the
pending motions or requests for relief in this case,
including Cates's motion to appoint counsel [Record No.
5], are DENIED as moot.
civil action is DISMISED and