United States District Court, E.D. Michigan, Northern Division
L. LUDINGTON, DISTRICT JUDGE
REPORT AND RECOMMENDATION TO DISMISS PURSUANT TO
Patricia T. Morris, United States Magistrate Judge
reasons set forth below, IT IS RECOMMENDED
that this matter be DISMISSED for failure to
prosecute pursuant to Federal Rule of Civil Procedure 41(b).
James Taylor, III (“Plaintiff”)-who proceeds
pro se and in forma pauperis-filed this
§ 1983 lawsuit on December 21, 2016, against Defendants
Richard Snyder and Kristie Etue (“Defendants”).
(Doc. 1). After his conviction for Criminal Sexual Conduct in
the Second Degree, he “was first subjected to the Sex
Offender Registration Act [(“SORA”)] on September
12, 2008, ” fourteen years “after [it] had begun
in 1994 as a non-public registry maintained solely for law
enforcement use, . . .” (Doc. 1 at 4). Since its
genesis, Plaintiff suggests that it “has grown into a
byzantine code governing in minute detail the lives of the
state's sex offenders, . . .” (Id.). As of
2011, amendments to SORA have subjected Plaintiff “to
constant supervision; required [him] to report frequently in
person; banned [him] from living or working in many areas;
restricted [him] as to when he [could] travel; limited his
rights to free speech; hindered [him] from maintaining normal
family relationships; identified [him] publicly and falsely
as dangerous; and subjected [him] to a vast array of
state-imposed restrictions that encompass virtually every
facet of his life.” (Doc. 1 at 5). Ultimately, he
contends the retroactive requirement that he comply with SORA
for 25 years or face criminal sanctions “violates the
constitutional prohibition on ex post facto laws, ”
violates his “fundamental rights to travel, work,
speak, and raise his children, ” and “also
violates the Due Process Clause, because many provisions of
SORA 2011 are void for vagueness.” (Doc. 1 at 6). In
making this argument, he discusses case law from around the
country, and draws heavily from language in Does #1-5 v.
Snyder, 834 F.3d 696 (6th Cir. 2016), reh'g
denied (Sept. 15, 2016), which held, among other things,
Michigan's SORA imposes punishment. And while many
(certainly not all) sex offenses involve abominable, almost
unspeakable, conduct that deserves severe legal penalties,
punishment may never be retroactively imposed or increased.
Indeed, the fact that sex offenders are so widely feared and
disdained by the general public implicates the core
counter-majoritarian principle embodied in the Ex Post Facto
clause. As the founders rightly perceived, as dangerous as it
may be not to punish someone, it is far more dangerous to
permit the government under the guise of civil regulation to
punish people without prior notice. . . . The retroactive
application of SORA's 2006 and 2011 amendments to
Plaintiffs is unconstitutional, and it must therefore cease.
Id. at 705-06; (Doc. 1 at 17-18). He prays for
relief in the form of: (1) a declaratory judgment that the
retroactive application of SORA 2011 violates the
Constitution's prohibition on ex post facto laws; (2) a
permanent injunction restraining Defendants from enforcing
SORA; and (3) nominal damages. (Doc. 1 at 1, 18).
2017, Defendants filed a Motion To Dismiss, (Doc. 15), and
the undersigned issued a Report and Recommendation urging
this Court to grant the motion as to his claims for damages
against Defendants in their official capacities, and
otherwise to deny the motion, (Doc. 18). This Report and
Recommendation was adopted on August 30, 2017. (Doc. 19).
Thereafter, this Court issued an Order requiring Plaintiff to
meet and confer with Defendants no later than September 22,
2017, and further setting a date for an initial Federal Rule
of Civil Procedure 16 conference on October 16, 2017. (Doc.
22). Plaintiff failed to meet and confer with Defendants by
the September date and later failed to appear in the October
pretrial telephonic conference. Instead, he filed a Motion
for Extension of Time To Comply with Order Requiring Rule
26(f) Meeting and Setting Date for Initial Rule 16 Conference
on October 16, 2017. (Doc. 23). In that Motion, he appeared
to suggest that he missed the appointments because notice
thereof was sent after he had changed his address, and
arrived at his present address only after the deadline
elapsed. (Doc. 23 at 2). I construed that Motion as a
preemptive attempt to show cause for failure to prosecute,
reminded him that Local Rule 11.2 imposes on him a duty to
“promptly . . . file [with the Clerk] and serve [on all
parties] a notice with the new contact information, ”
and granted him another opportunity to comply with LR 11.2.
(Doc. 25). I also granted a “one-time extension to
complete the process of meeting and conferring with
defendants to establish a proposed discovery plan, ”
and warned him that failure to confer with defendants could
result in dismissal under LR 41(b). (Id. at 3-4). In
abundant caution, this Order was sent to both his address of
record and his address as alleged in his Motion. Yet
Plaintiff nonetheless failed to confer with Defendants or
appear for the scheduling conference, and this Court issued
an Order To Show Cause Why This Case Should Not Be Dismissed
for Failure To Prosecute. (Doc. 27). A response was due by
December 12, 2017, but Plaintiff has not yet responded.
courts may sua sponte dismiss a complaint where the
plaintiff fails to prosecute or comply with the court's
orders under Federal Rule of Civil Procedure 41(b). Link
v. Wabash R.R. Co., 370 U.S. 626, 630-32 (1962).
“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.” Id.
Sixth Circuit is guided by four factors in determining
whether a case should be dismissed for want of prosecution
pursuant to Rule 41(b):
(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 sanctions
were imposed or considered before dismissal of the action.
Saulsberry v. Holloway, 622 Fed.Appx. 542, 545 (6th
Cir. 2015) (quotation omitted). In this case, the factors
counsel dismissal. First, Plaintiff's failure to comply
with his duties and the Court's orders appears to result
from willfulness. Though not represented by counsel,
Plaintiff declined to comply with LR 11.2 after express
warning from this Court, and further failed to meet and
confer with Defendants-or respond in any way to several
notices and filings sent to him since November 2017-all of
which suggests that Plaintiff has voluntarily chosen to
abandon this suit. (Docs. 24-28). Second, Defendants have
undoubtedly been prejudiced by Plaintiff's abandonment of
the case, as Defendants have incurred legal costs through
continued legal representation in this matter, which would
have been unnecessary but for Plaintiff's dilatory
actions. Third, Plaintiff was warned in the Court's Order
and Amended Order addressing his Motion for Extension of
Time, (Docs. 23-24), that refusal to comply could result in
dismissal, and was again warned on November 28, 2017, (Doc.
27), that failure to show cause may result in dismissal.
Finally, although the Court has not yet imposed less severe
sanctions, it has (until this juncture) afforded Plaintiff
considerable leniency in the litigation of this suit, and as
such is not obligated preserve his claims. Accord,
e.g., Funk v. Comm'r of Soc. Sec., No.
10-CV-14865, 2011 WL 2470999, at *1 (E.D. Mich. June 1,
2011), report and recommendation adopted, No.
10-14865, 2011 WL 2470983 (E.D. Mich. June 22, 2011)
(collecting cases). In sum, the factor analysis counsels
dismissal. Having repeatedly failed to comply with his duties
in this matter, and having been warned that continued
dilatory tactics would result in dismissal, the Court finds
that the only appropriate remedy is to dismiss this action.