On March 22, 2023, the U.S. Court of Appeals for the Sixth Circuit revived a suit filed five years earlier by a Tennessee prisoner who is legally blind. In his March 2018 complaint, Corey Tarvin accused the state Department of Corrections (DOC) of failure to accommodate his visual disability, and he accused DOC contractor CoreCivic – the massive private prison operator formerly known as Corrections Corp. of America – of failure to protect him from being stabbed by other prisoners.

Due to his blindness, Tarvin informed the federal court for the Middle District of Tennessee that he had “difficulty participating in the litigation process,” so counsel was appointed to represent him. When he later asked to remove his appointed counsel due to “a lack of results and responsiveness,” his motion was granted; but no other attorney was appointed, thus forcing him to proceed pro se.

CoreCivic served discovery requests on Tarvin, including interrogatories and requests for admission, then claimed he failed to respond. The company filed a motion to compel responses, and a magistrate judge imposed a deadline for Tarvin to reply. Instead he sent several letters to the district court explaining that he was legally blind, that CoreCivic already had the records it was requesting, and that other prisoner aides who helped him “didn’t put [his] mail in the mailbox” or “addressed the envelope with the wrong address.” He also asked to participate in discovery verbally, stating he was “unable to participate” in the case “without any help … or assistance, due to being visually disable[d].”

CoreCivic moved to dismiss for lack of prosecution under Fed.R.Civ.P. 4l(b). Tarvin didn’t respond, and the district court dismissed his suit after applying the four factors relevant to Rule 41(b): 1) whether the party’s failure to comply was due to willfulness, bad faith or fault; 2) whether the other party was prejudiced by the dismissed party’s conduct; 3) whether the dismissed party was warned that dismissal could result; and 4) whether less drastic sanctions had been considered or previously imposed.

Tarvin turned then to the Sixth Circuit, which appointed appellate counsel from the Boston law firm of Wilmer, Cutler, Pickering, Hale and Dorr. The Court began by noting that Rule 4l(b) “allows a district court to dismiss a case ‘[i]f the plaintiff fails to prosecute or to comply with [Federal Rules of Civil Procedure] or a court order.’” So the lower court’s dismissal was reviewed under an abuse-of-discretion standard, including its evaluation of the four Rule 4l(b) factors.

The Sixth Circuit then rejected the district court’s finding that Tarvin’s failure to respond to the order compelling discovery was “per se evidence of willfulness and fault,” dooming his suit under the first factor. The Court noted that “all failures to respond aren’t created equally,” saying the lower court failed to take into account Tarvin’s letters explaining his difficulties in litigating due to his blindness. Nor had the district court properly considered the prisoner’s request to participate in discovery verbally to accommodate his visual disability.

“In short,” the Sixth Circuit wrote, “the district court didn’t address Tarvin’s statements that he had previously sent discovery responses in the mail with the help of a qualified aid ... and that he was now seeking to respond orally.” That constituted an abuse of discretion. While the finding no similar abuse with respect to the other Rule 41 (b) factors, the Court said that “because the first factor carries so much weight,” it would vacate the order of dismissal and remand the case for further proceedings. Circuit Judge Cole issued a concurring opinion, while Circuit Judge Readier concurred separately as to the judgment only. See: Tarvin v. Lindamood, 2023 U.S. App. LEXIS 7092 (6th Cir.).

On remand at the district court, Tarvin was again appointed counsel, this time from attorney Kyle F. Mothershead of Relentless Advocacy, PLLC in Nashville, along with attorneys Eve L. Hill and Monica R. Basche of Brown Goldstein & Levy, LLP in Baltimore. The case remains open, and PLN will update developments as they are available. See: Tarvin v. Lindamood, USDC (M.D. Tenn.), Case No. 1:18-cv-00025.