United States District Court, E.D. Kentucky, Central Division, Frankfort
MEMORANDUM OPINION AND ORDER
M. HOOD, SENIOR U.S. DISTRICT JUDGE
without an attorney, Plaintiff Raymond Eastman previously
filed a civil rights action against prison officials pursuant
to 42 U.S.C. § 1983. [R. 1] Although Eastman did not pay
the required filing fees, he did file a motion to proceed
in forma pauperis. [R. 2] However, Eastman's fee
motion did not include a certificate of inmate account
certified by prison staff as required by 28 U.S.C. §
on October 25, 2019, the Court entered an Order denying
Eastman's motion to proceed in forma pauperis
without prejudice, but also directing the Clerk of the Court
to provide Eastman with the necessary forms so that he could
file a properly-supported motion. [R. 6] The Court further
ordered Eastman 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.
McGore v. Wrigglesworth, 114 F.3d 601, 605 (6th Cir.
1997), abrogated on other grounds, Jones v. Bock,
549 U.S. 199 (2007). This 30-day period has now come and gone
with no response from Eastman.
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 Eastman has not
filed a properly-supported 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 proceed without prepayment of the
entire filing fee.
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, Eastman failed to comply with, or even
respond to, 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. Thus, evaluating
all of these factors, the Court concludes that dismissal of
Eastman'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
it is hereby ORDERED as follows:
Eastman's Complaint [R. 1] is DISMISSED
WITHOUT PREJUDICE for failure to
prosecute and for failure to comply with an Order of the
Court will enter an appropriate Judgment; and 3. This matter
is STRICKEN from the Court's docket.