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Morrison v. Miller

United States District Court, W.D. North Carolina, Asheville Division

December 10, 2019

JOHN JOSEPH MORRISON, et al., Plaintiffs,
v.
MICHAEL W. MILLER, et al., Defendants.

          ORDER

          Frank D. Whitney Chief United States District Judge

         THIS MATTER is before the Court on initial review of Plaintiffs' Amended Complaints, (Doc. Nos. 7, 9, 11, 13, 15, 17), on Plaintiffs' Motions to proceed in forma pauperis, (Doc. Nos. 2, 8, 10, 12, 14, 16, 18, 19), and on the Court's May 5, and October 31, 2019 Orders, (Doc. Nos. 3, 23). Also pending are two Letters by Plaintiff Wilson that were docketed as Motions, (Doc. Nos. 4, 21).

         I. BACKGROUND

         Pro se Plaintiffs filed a Complaint pursuant to 42 U.S.C. § 1983 while they were pretrial detainees at the Cleveland County Detention Center. On May 3, 2019, the Court issued an Order explaining that the Complaint was too deficient to be screened on initial review and that each Plaintiff was required to pay the filing fee or move to proceed in forma pauperis and file a signed Amended Complaint within 21 days. (Doc. No. 3). Plaintiffs were cautioned that failure to comply would probably result in the case's dismissal and closure without further notice. (Doc. No. 3 at 2). On October 31, 2019, the Court issued an Order requiring Plaintiffs Morrison, Wilson, Soria Garcia, Banks, Curry, Sarvis, and Sanford to file Notices informing the Court of their current addresses. (Doc. No. 23).

         Plaintiffs Byers, Moore, Soria Garcia, Douglas, Curry, and Sarvis have filed Amended Complaints. They name as Defendants some or all of the following: Head State Prosecutor Michael W. Miller, Assistant State Prosecutor Richard L. Shaffer Jr., Assistant State Prosecutor Elizabeth Lari, State Prosecutor Sally Kirby Turner, and State Prosecutor William Wiseman. Plaintiffs claim that Defendants are not following North Carolina statutes and procedures, and are depriving them of due process, with regards to first appearances, probable cause hearings, and/or submitting indictments to the grand jury. Plaintiffs seek release from pending charges, federal indictment and removal of Defendants' law licenses, expungement of prior criminal records, and a public apology.

         Only Plaintiffs Morrison, (Doc. No. 30), Soria Garcia, (Doc. No. 31), and Curry (Doc. No. 32), filed Notices providing the Court with their current addresses in compliance with the October 31 Order, and the Court has been able to determine Plaintiff Sarvis and Banks' current addresses on the NCDPS website. See https://www.ncdps.gov/dps-services/crime-data/offender-search. Plaintiffs Wilson and Sanford failed to comply with the October 31 Order and the Court has been unable to determine their present addresses.

         II. MOTIONS TO PROCEED IN FORMA PAUPERIS

         Applications to proceed in forma pauperis have been filed by Plaintiffs Wilson, (Doc. No. 2), Morrison (Doc. No. 19), Byers (Doc. No. 14), Moore (Doc. No. 12), Soria Garcia (Doc. No. 16), Short (Doc. No. 6), Curry (Doc. No. 8), and Sarvis (Doc. No. 10). These Plaintiffs claim that they have zero income, are unemployed, have no assets, and are unable to pay the costs of these proceedings because they are incarcerated. The Court is satisfied that they lack they lack sufficient funds to pay the filing fee. These Plaintiffs will therefore be granted leave to proceed in forma pauperis. The Clerk of Court will be instructed to enter an Order Waiving Initial Partial Filing Fee and Directing the Correctional Facility to Transmit Partial Payments with regards to Plaintiffs Wilson, Morrison, Byers, Moore, Soria Garcia, Short, Curry, and Sarvis.

         II. LACK OF PROSECUTION

         Plaintiffs have a general duty to prosecute their cases. In this regard, a pro se plaintiff must keep the Court apprised of his current address. See Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988) (“A party, not the district court, bears the burden of keeping the court apprised of any changes in his mailing address.”). Where a pro se plaintiff has failed to notify the Court of his change of address, the action is subject to dismissal without prejudice for failure to prosecute. See Walker v. Moak, 2008 WL 4722386 (E.D. La. Oct. 22, 2008) (dismissing without prejudice a § 1983 action for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure where the plaintiff did not notify the court of his new address upon his release from jail). Litigants are also obligated to comply with Court orders. See generally Fed.R.Civ.P. 41(b) (district court may dismiss an action “[f]or failure of the plaintiff to prosecute.”). Before dismissing a case for failure to prosecute, a district court should weigh: “(1) the plaintiff's degree of personal responsibility; (2) the amount of prejudice caused the defendant; (3) the presence of a drawn out history of deliberately proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic than dismissal.” Attkisson v. Holder, 925 F.3d 606, 625 (4th Cir. 2019) (quoting Hillig v. Comm'r of Internal Revenue, 916 F.2d 171, 174 (4th Cir. 1990)).

         The Court ordered Plaintiffs to pay the filing fee or an application to proceed in forma pauperis and an amended complaint by Order dated May 3, 2019, and to file a notice informing the Court of their current addresses on October 31, 2019.

         Plaintiffs Banks and Sanford failed to pay the filing fee or apply to proceed in forma pauperis, and Plaintiffs Banks, Morrison, Sanford, and Wilson failed to file amended complaints in compliance with the May 3, 2019 Order. Plaintiffs Wilson and Sanford fail to comply with the October 31, 2019 Order requiring Plaintiffs to apprise the Court of their present addresses and the Court has been unable to determine their present locations.

         Therefore, this action will be dismissed without prejudice and terminated as to Plaintiffs Banks, Sanford, Morrison, and Wilson for lack of prosecution and for failing to comply with the Court's May 3 and October 31, 2019 Orders. Plaintiff Wilson's pending Motions will be denied as moot.[1]

         II. ...


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