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Robinson v. Tansel

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

September 13, 2017

MICHAEL ROBINSON (#515217), Plaintiff,
v.
NICOLE TANSEL (YOCKEY), Defendant.

          Judge, George Caram Steeh

          REPORT AND RECOMMENDATION TO GRANT IN PART DEFENDANT'S MOTION FOR DISMISSAL AND COSTS PURSUANT TO FED. R. CIV. P. 41(B) (DE 41)

          ANTHONY P. PATTI, UNITED STATES MAGISTRATE JUDGE

         I. RECOMMENDATION:

         The Court should GRANT Defendant's June 23, 2017 motion without prejudice, to the extent it seeks dismissal pursuant to Fed.R.Civ.P. 41(b), and should DENY the motion as premature, to the extent it seeks costs.

         II. REPORT:

         A. Background

         On January 14, 2016, while incarcerated at the Michigan Department of Corrections (MDOC) Woodland Center Correctional Facility (WCC), Plaintiff Michael Robinson filed the instant, verified lawsuit in pro per against Nicole Tansel (Yockey), who is described as a WCC Activity Therapist. (DE 1; see also DEs 15, 16.) As alleged in the complaint, Defendant issued Plaintiff a fabricated misconduct citation for threatening behavior, in retaliation for engaging in protected conduct, and violated Plaintiff's rights under the First, Eighth and Fourteenth Amendments. (DE 1 at 7 ¶ 35.) Among other forms of relief, Plaintiff seeks compensatory damages, punitive damages, and an award of costs. (DE 1 at 8.)

         B. Motion Practice and Plaintiff's Various Addresses of Record

         During March 2016, Plaintiff informed the Court that his address had changed from WCC to the Gus Harrison Correctional Facility (ARF). (DE 9.) Plaintiff was paroled on August 2, 2016.[1] On August 19, 2016, he informed the Court that his address had changed to 154 Roosevelt Hudson Dr., Yazoo City, MS, which appears to be the address of Yazoo County Correctional Facility (YCCF). (DE 21; http://www.mdoc.ms.gov/Institutions/Pages/Regional-Facilities.aspx#Yazoo.) Thereafter, I issued a report recommending that the Court deny Defendant's June 27, 2016 motion for summary judgment. (DEs 17, 22.) However, the copy of this report mailed to Plaintiff at the YCCF address was returned to the Court as undeliverable. (DE 23.)

         On October 21, 2016, Judge Steeh entered an order accepting my report and recommendation and denying Defendant's motion for summary judgment. (DE 24.) A copy of this order was served upon Plaintiff at the YCCF address. In January 2017, Plaintiff filed a motion for summary judgment and listed YCCF as his return address. (DE 26.) On February 7, 2017, Plaintiff informed the Court that his address changed to 2935 Highway 51, Canton, MS 39046, which appears to be the address of the Madison County Jail. (DE 28; http://www.whitepages.com/business/madison-county-jail-canton-ms-2.)[2]

         On March 28, 2017, the Court entered an opinion and order denying without prejudice Plaintiff's March 6, 2017 request, which was construed as a Fed.R.Civ.P. 37 motion to compel discovery. (DEs 29, 32.) This order was served upon Plaintiff at the Madison County Jail. By way of a notice post-marked April 3, 2017 and filed April 6, 2017, Plaintiff informed the Court that his address had changed to 824 Jackson Ave., Yazoo City, MS 39194, which seems to be a private address. (DE 33; www.whitepages.com.) Thereafter, on April 12, 2017, the Court was informed that the copy of its March 28, 2017 order mailed to 2935 Highway 51, Canton, MS 39046 was returned as undeliverable. (DEs 32, 34.)

         On April 19, 2017, Defendant filed a motion to conduct Plaintiff's deposition. (DE 35.) Within the week, I entered an order granting the motion. (DE 36.) A copy of this order was mailed to Plaintiff at 824 Jackson Ave., Yazoo City, MS 39194. On May 11, 2017, Judge Steeh entered an order accepting my report and recommendation to deny Plaintiff's motion for summary judgment. (DEs 37, 40.) A copy of this order was mailed to Plaintiff at 824 Jackson Ave., Yazoo City, MS 39194.

         C. Instant Motion

         Judge Steeh has referred this case to me for pretrial matters. (DE 10.) Currently before the Court is Defendant's June 23, 2017 motion for dismissal and costs pursuant to Fed.R.Civ.P. 41(b). (DE 41.) Specifically, Defendant seeks dismissal from this action with prejudice and an award of costs and ...


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