United States District Court, E.D. Kentucky, Central Division
LARRY D. HILL, JR., Plaintiff,
FEDERAL MEDICAL CENTER, LEXINGTON, KY, Defendant.
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT EASTERN
DISTRICT OF KENTUCKY
Larry D. Hill, Jr., is a federal inmate currently confined at
the Federal Medical Center (“FMC”)-Lexington in
Lexington, Kentucky. Hill previously filed a document with
the Court styled as a proposed order to show cause for a
preliminary injunction and a temporary restraining order,
which was docketed as a civil action for administrative
purposes. [R. 1]
because the document filed by Hill was insufficient to
constitute a civil rights complaint, the Court entered an
Order on December 28, 2018, advising Hill that it could not
entertain his motion for injunctive relief because he had not
properly invoked its jurisdiction by filing a formal
complaint. [R. 3] In addition, Hill had not paid the $350.00
filing fee and the $50.00 administrative fee, nor had he
filed a motion pursuant to 28 U.S.C. § 1915 to pay the
filing fee in installments. Thus, the Court directed the
Clerk of the Court to provide Hill with the necessary forms
so that he could correct these deficiencies by filing a
complaint on a court-supplied form and motion to proceed
in forma pauperis. The Court ordered Hill to
complete the forms and file them with the Court within 30
days, warning him that this action would be dismissed without
prejudice should he fail to do so. [R. 3]
Hill has since filed a second motion/order for preliminary
injunction and temporary restraining order, this document,
like the one he originally filed, is not a civil rights
complaint, but instead appears to be a proposed order
directing the Food Service Administrator at FMC-Lexington to
appear at a hearing to show cause why a preliminary
injunction should not be issued against him for allegedly
forcing inmates into slave labor. [R. 5] Again, this document
is insufficient to constitute a civil rights complaint. In
addition, Hill still has not paid the filing fee, nor has he
filed a motion for leave to proceed in forma
pauperis. Thus, the 30-day period provided by the Court
within which to file a complaint on the court-supplied form
and pay the filing fee or file a motion to proceed in
forma pauperis has now come and gone and Hill has failed
to comply with the Court's clear instructions.
Rule 5.2(b) specifically provides that “a pro se
litigant's failure to file his or her petition on a
court-supplied form within thirty (30) days may be grounds
for dismissal.” See Local Rule 5.2(b).
Similarly, Local Rule 5.3(a)(1) requires prisoners seeking
leave to proceed without prepayment of the entire filing fee
to comply with the requirements of the Prison Litigation
Reform Act (“PLRA”), 28 U.S.C. § 1915(a)(2).
See Local Rule 5.3(a)(1). Because Hill has not filed
a motion for leave to proceed in forma pauperis with
this Court (despite the Court's instructions), he has not
complied with the PLRA requirements that would allow him to
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.”).
determining whether to dismiss a case for failure to
prosecute, the Sixth Circuit has directed 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 case 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, Hill failed to comply with the Court's
Order directing him to complete and file the forms required
to proceed in this action, despite the Court's clear
warning that his failure to do so would result in dismissal
of the case.
evaluating all of these factors, the Court concludes that
dismissal of Hill'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). See also McGore v.
Wrigglesworth, 114 F.3d 601, 605 (6th Cir. 1997),
abrogated on other grounds, Jones v. Bock, 549 U.S.
it is hereby ORDERED as follows:
1. Hill's “complaint” [R. 1] is
DISMISSED WITHOUT PREJUDICE for failure to
prosecute and for failure to comply ...