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Kruger v. Winn

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

August 3, 2016

KURT KRUGER, Plaintiff,
v.
WINN, et al, Defendants.

          Kurt Kruger, Plaintiff, Pro Se.

          Winn, Defendant, represented by Allan J. Soros, Michigan Department of Attorney General.

          Director of the Michigan Department of Corrections, Defendant, represented by Allan J. Soros, Michigan Department of Attorney General.

          REPORT AND RECOMMENDATION RULE 41(B) DISMISSAL AND MOTION FOR SUMMARY JUDGMENT (Dkt. 14)

          STEPHANIE DAWKINS DAVIS, Magistrate Judge.

         I. PROCEDURAL HISTORY

          Pro se plaintiff Kurt Kruger filed this prisoner civil rights lawsuit on October 16, 2015. (Dkt. 1). Defendants filed a motion for summary judgment on December 20, 2015. (Dkt. 14). This motion was referred to the undersigned for report and recommendation. (Dkt. 15). On March 2, 2016, the undersigned ordered plaintiff to file a response to the motion for summary judgment by April 15, 2016, warning that "[f]ailure to file a response may result in sanctions, including granting all or part of the relief requested by the moving party." (Dkt. 16) (emphasis in original).[1] Plaintiff failed to file a timely response to the motion for summary judgment. Accordingly, on May 13, 2016, this Court issued an order to show cause. (Dkt. 18). Plaintiff was ordered to show cause by June 3, 2016, why this matter should not be dismissed and again was warned, in bold print, that failure to timely or adequately respond in writing to the Order to Show Cause or timely file a response to the motion will result in a recommendation that the motion be granted or that the entire matter be dismissed under Rule 41(b). (Dkt. 18). The Order to Show Cause was returned as undeliverable on May 25, 2016. (Dkt. 19). Apparently, plaintiff was not at the Saginaw Correctional Facility for approximately one week and was then returned to the Saginaw Correctional Facility. Therefore, the Order to Show Cause was re-served on plaintiff at Saginaw Correctional Facility on the same date that it had been returned. See Text-Only Certificate of Service dated May 25, 2016. Two months have passed since the deadline given in the Show Cause Order and plaintiff has failed to respond to either the Show Cause Order or the motion for summary judgment.

         For the reasons set forth below, the undersigned RECOMMENDS that plaintiff's complaint against defendant be DISMISSED with prejudice under Federal Rule of Civil Procedure 41(b) and that the pending motion (Dkt. 14) be TERMINATED as MOOT.

         II. ANALYSIS AND CONCLUSION

         Under Federal Rules of Civil Procedure 41(b), a federal court may sua sponte dismiss a claim for failure to prosecute or comply with an order. Link v. Wabash R.R. Co., 370 U.S. 626, 630-32 (1962); Steward v. City of Jackson, 8 Fed.Appx. 294, 296 (6th Cir. 2001). Indeed, the "authority of a federal trial court to dismiss a plaintiff's action with prejudice because of his failure to prosecute cannot seriously be doubted." Link, 370 U.S. at 629. "The power to invoke this sanction 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, 370 U.S. at 629-630. "[D]istrict courts possess broad discretion to sanction parties for failing to comply with procedural requirements." Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, and GMC Trucks, Inc., 173 F.3d 988, 991 (6th Cir. 1999), citing Carver v. Bunch, 946 F.2d 451, 453 (6th Cir. 1991). Further, "a district court can dismiss an action for noncompliance with a local rule... if the behavior of the noncomplying party rises to the level of a failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure." Tetro, 173 F.3d at 992.

         Federal Rule of Civil Procedure 41 governs dismissals. As to involuntary dismissals, it 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.

         Fed.R.Civ.P. 41(b). "Neither the permissive language of [Rule 41(b)] - which merely authorizes a motion by the defendant - nor its policy requires us to conclude that it was the purpose of the Rule to abrogate the power of courts, acting on their own initiative, to clear their calendars of cases that have remained dormant because of the inaction or dilatoriness of the parties seeking relief." Link v. Wabash R. Co., 370 U.S. 626, 630 (1962). "The authority of a federal trial court to dismiss a plaintiff's action with prejudice because of his failure to prosecute cannot seriously be doubted." Link, 370 U.S. at 629; 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.") (citing Link ). Moreover, "district courts possess broad discretion to sanction parties for failing to comply with procedural requirements." Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, and GMC Trucks, Inc., 173 F.3d 988, 991 (6th Cir. 1999), citing Carver v. Bunch, 946 F.2d 451, 453 (6th Cir. 1991). And, "a district court can dismiss an action for noncompliance with a local rule only if the behavior of the noncomplying party rises to the level of a failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure." Tetro, 173 F.3d at 992.

         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 drastic ...

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