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Dudley El v. Makowski

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

June 1, 2017

DARRYL DUDLEY EL, Plaintiff,
v.
DONALD MAKOWSKI, ET AL., Defendant.

          Arthur J. Tarnow United States District Judge

          REPORT AND RECOMMENDATION RULE 41B DISMISSAL OF DEFENDANTS DONALD MAKOWSKI, LELAND PUTNAM, CARL MAYNARD, JACK BEESON, G. S. GRAY, EVERTT ELKINS, GENE BOGERT AND KENNETH MCGINNIS

          Stephanie Dawkins Davis United States Magistrate Judge

         I. PROCEDURAL HISTORY

         Plaintiff, Darryl Dudley El filed a civil rights Complaint on May 8, 2014. (Dkt. 1). The events giving rise to the Complaint concern actions that occurred while plaintiff was incarcerated at the Huron Valley Men's Correctional Facility in Ypsilanti, Michigan.

         On September 18, 2014, the U.S. Marshals Service acknowledged receipt of service of process documents with respect to several defendants including, Donald Makowski, Leland Putnam, Carl Maynard, Jack Beeson, G. S. Gray, Evertt Elkins, Gene Bogert and Kenneth McGinnis. (Dkt. 9). On September 30, 2014, a wavier of service was returned unexecuted as to defendants Bogert and McGinnis. (Dkt. 10). On October 7, 2014, two separate waivers of service were returned unexecuted as to defendants Gray and Beeson. (Dkt. 11, 12). On November 3, 2014, a wavier of service was returned unexecuted as to defendant Elkins. (Dkt. 13).

         On June 3, 2015, District Judge Arthur J. Tarnow referred all pretrial matters to Magistrate Judge Michael Hluchaniuk, and on January 5, 2016, all pretrial matters were reassigned to the undersigned. (Dkt. 18; see also Text-Only Order dated January 5, 2016). On October 6, 2015, the court ordered the Michigan Department of Corrections (“MDOC”) to provide the U.S. Marshals Service with defendants Putnam, Bogert and McGinnis' last known addresses as these defendants could no longer be found at the work address provided by plaintiff. (Dkt. 37, 38, 40, 42). On October 28, 2015, a waiver of service was returned unexecuted as to defendant Putnam. (Dkt. 45). On November 4, 2015, separate waivers of service were returned unexecuted as to defendants McGinnis and Bogert. (Dkt. 48, 49).

         On September 29, 2016, the court ordered plaintiff to provide correct addresses for defendants Makowski, Putnam, Maynard, Beeson, Gray, Elkins, Bogert and McGinnis by October 31, 2016, so that service could be effectuated. (Dkt. 64). The court cautioned plaintiff that “if the Marshal is unable to effectuate service on the defendants with the information thus far provided, the onus remains on plaintiff to discover and submit sufficient information for service of all defendants he has named in his lawsuit.” (Dkt. 64, Pg ID 232-233). The court continued, if any defendant remains unserved after the expiration of the extended summons, on January 30, 2017, “plaintiff may be required to show ‘good cause' why this action should not be dismissed.” (Id. at 233).

         When plaintiff did not provide correct addresses for defendants Makowski, Putnam, Maynard, Beeson, Gray, Elkins, Bogert, and McGinnis by the court's deadline, the court ordered plaintiff to show cause in writing by April 18, 2017 why the court should not recommend dismissal under Rule 4(m) for failure to provide the correct addresses so that service could be effectuated in a timely manner. (Dkt. 76). The Order to Show Cause warned plaintiff that “[f]ailure to satisfactorily or timely comply with this order will result in a recommendation that the action against defendants Makowski, Putnam, Maynard, Beeson, Gray, Elkins, Bogert, and McGinnis should be dismissed pursuant to Federal Rule of Civil Procedure 4(m) and Local Rule 41.2.” Id. (emphasis in original).

         On April 20, 2017, plaintiff filed a document entitled “Agreement to Stipulate with the Court Order”; however, this document did not provide correct addresses for any of the identified defendants, nor did it offer “good cause” as to why those addresses have not been provided. (See Dkts. 75, 76).

         Consequently, for the reasons set forth below, the undersigned RECOMMENDS that plaintiff's complaint against defendants Makowski, Putnam, Maynard, Beeson, Gray, Elkins, Bogert and McGinnis be DISMISSED with prejudice under Federal Rule of Civil Procedure 41(b).

         II. ANALYSIS AND CONCLUSIONS

         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.

         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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