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Abdoush v. Prisoner Health Services

United States District Court, E.D. Michigan, Southern Division

January 12, 2015

ABBAS ABDOUSH, Plaintiff,
v.
PRISONER HEALTH SERVICES, et al., Defendants.

REPORT AND RECOMMENDATION ON DEFENDANTS EDELMAN, PRISONER HEALTH SERVICES AND SQUIRE'S MOTIONS TO DISMISS [57, 64], AND DEFENDANTS KINDER AND PANDYA'S MOTION TO DISMISS [59]

ELIZABETH A. STAFFORD, Magistrate Judge.

I. RECOMMENDATION

Before the Court are two motions to dismiss filed by defendants Prison Health Services ("PHS"), Adam Edelman, and Harriet Squire (the "PHS Defendants"). The first seeks dismissal of plaintiff Abbas Abdoush's complaint for failure to state a claim upon which relief can be granted. [57]. The second, filed four months later and after Abdoush failed to file a responsive brief to the first motion as ordered by the Court, seeks to dismiss his complaint for failure to prosecute. [64]. Also before the Court is defendants Laura Kinder and Haresh Pandya's (the "MDOC Defendants") motion to dismiss or, in the alternative, for summary judgment. [59]. This case has been referred to the undersigned to resolve all pretrial matters pursuant to 28 U.S.C. ยง 636(b)(1)(A) and (B). [66]. For the following reasons, the Court RECOMMENDS that the PHS Defendants' motion to dismiss for failure to prosecute [64] be GRANTED, and the other two motions to dismiss [57, 59] be DENIED AS MOOT.

II. REPORT

A. Background

Abdoush initially filed a complaint in this Court against defendants PHS, Edelman, Squire, Pandya, and Kinder, as well as Dr. Paul Piper, the Michigan Department of Corrections ("MDOC"), Sheila Bastin and Dr. George Pramstaller. [1]. Abdoush's complaint alleged that he was denied adequate medical care after sustaining an injury to his eye following a collision during a soccer match. He alleged that to date he continued to suffer pain and other ancillary conditions as a result of not receiving proper treatment for this injury. MDOC, Edelman and Piper filed motions to dismiss, which were recommended to be granted in a July 13, 2012 Report and Recommendation. [24]. Subsequently, after the Report and Recommendation was returned to the Court as undeliverable due to Abdoush's parole, Edelman and Piper moved to dismiss the complaint for failure to prosecute. [26]. On August 14, 2012, the Court granted that motion, mooting the earlier Report and Recommendation, and dismissed Abdoush's complaint without prejudice. [27].

In December 2012, Abdoush filed a change of address notice with the Court [29] and, in February 2013, moved to have his case reinstated. [30]. Attached to that motion was what appeared to be an amended complaint. Id. On August 14, 2013, the Court granted Abdoush's motion to reinstate, and directed him to file his amended complaint separately within ten days. [35]. On February 11, 2014, almost six months after Abdoush was supposed to file his amended complaint, the Court issued an order to show cause why the case should not be dismissed for Abdoush's failure to file the amended complaint. [37]. Abdoush responded to this show-cause order, claiming that he had been in immigration custody following a short period of parole and had not received any mail, including the order reinstating his case and directing him to file an amended complaint. [39]. On April 1, 2014, over the objection of defendants Edelman, Piper, PHS and Squire, the Court set aside its show-cause order and directed the Clerk of Court to serve previously unserved defendants Kinder, Bastin and Pandya. [44].[1] Service was executed on Kinder and Pandya, but returned unexecuted as to Bastin. [52, 53, 54]. Despite the Court's April 1 order requiring MDOC to provide another address for Bastin [44 at 7], MDOC has, to date, not provided an alterative address.

On April 14 and 17, 2014, respectively, Abdoush notified the Court of an address change. [46, 47]. The PHS Defendants moved to compel production of documents on June 5, 2014, and Abdoush was ordered to respond to the motion by July 31, 2014. [55 & 56]. In June of 2014, the PHS Defendants filed a motion to dismiss Abdoush's complaint for failure to state a claim, and the MDOC Defendants moved to dismiss Abdoush's complaint or, in the alternative, for summary judgment. [57 & 59]. Abdoush was ordered to respond to these two motions by August 4, 2014. [60]. However, on June 25 and 26, 2014, respectively, copies of the Court's orders regarding Abdoush's response dates were returned as undeliverable. [61, 62]. On July 2, 2014, Abdoush filed another change of address with the Court, noting that he had been paroled. [63]. The Court's orders were re-mailed to this new address nine days later.

Three months later, after Abdoush failed to file a response to the outstanding motions, the PHS Defendants moved to dismiss his complaint for failure to prosecute. [64]. On October 22, 2014, an order was issued requiring Abdoush to respond to this motion by December 22, 2014, and the order was sent to his last address of record; this order was has not been returned as undeliverable. [65]. Nonetheless, Abdoush has not responded to any of the pending motions.

B. Legal Standard

Federal Rule of Civil Procedure 41 governs dismissals of actions. As to involuntary dismissals, Rule 41(b) provides:

If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule - except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 - operates as an adjudication on the merits.

The Sixth Circuit considers four factors in reviewing the decision of a district court to dismiss a case for failure to prosecute:

(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 ...

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