United States District Court, E.D. Michigan, Southern Division
REPORT AND RECOMMENDATION RULE 41(B) DISMISSAL AND
MOTION TO DISMISS (DKT. 43)
STEPHANIE DAWKINS DAVIS UNITED STATES MAGISTRATE JUDGE
a prisoner in the custody of the Michigan Department of
Corrections, filed this civil rights complaint on March 12,
2015. (Dkt. 1). On July 13, 2017, this case was referred to
the undersigned by District Judge Laurie J. Michelson for all
pretrial purposes. (Dkt. 30).
January 4, 2018, defendant Anna Benson filed a motion to
dismiss the complaint. (Dkt. 43). The following day, the
Court ordered plaintiff to respond to the motion to dismiss
by February 20, 2018. (Dkt. 44). In that Order, the Court
warned plaintiff 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. 44, Pg ID
226) (emphasis in original). Having not received
plaintiff's response by the deadline, on April 2, 2018,
the undersigned ordered plaintiff to show cause in writing by
April 23, 2018 why the court should not dismiss his complaint
because of his failure to file a response. (Dkt.
Alternatively, the court told plaintiff that he could file a
response to the motion to dismiss by April 23, 2018.
Id. Again, the court warned plaintiff that
“[f]ailure to timely or adequately respond in writing
to this Order to Show Cause or timely file a response to the
motion to dismiss will result in a recommendation that the
motion be granted or that the entire matter be dismissed
under Rule 41(b).” Id. (emphasis in original).
the date of this Report and Recommendation, plaintiff has not
filed a response to the court's order to show cause or a
substantive response to the motion to dismiss. Consequently,
for the reasons set forth below, the undersigned RECOMMENDS
that plaintiff's complaint against defendant Benson be
DISMISSED with prejudice under Federal Rule of Civil
Procedure 41(b) and that her motion to dismiss be TERMINATED
ANALYSIS AND CONCLUSIONS
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.
Sixth Circuit considers four factors in reviewing the
decision of a district court to dismiss a case for failure to
(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 was ordered.
Wu v. T.W. Wang, Inc., 420 F.3d 641, 643
(6th Cir. 2005) (citing Knoll v. American Tel. & Tel.
Co., 176 F.3d 359, 363 (6th Cir. 1999)). On balance,
these factors weigh in favor of dismissal here. With respect
to the first factor, similar to the facts in White v.
Bouchard, 2008 WL 2216281, *5 (E.D. Mich. 2008),
“it is not clear whether plaintiff's failure to
prosecute is due to willfulness, bad faith or fault.”
Id. Regardless, “defendants cannot be expected
to defend an action, ” that plaintiff has
“apparently abandoned, not to mention the investment of
time and resources expended to defend this case.”
Id. For these reasons, the first and second factors
weigh in favor of dismissal.
based on the warnings given to plaintiff, the third factor
also clearly weighs in favor of dismissal. This court has
regularly dismissed cases under Rule 41(b) after a plaintiff
has been warned of dismissal, failed to comply with court
orders without explanation, where defendants expended
resources on an abandoned action and lesser sanctions would
prove useless. See e.g., Croton v.Recker,
2012 WL 3888220, at *2 (E.D. Mich. Sept. 7, 2012).
Importantly, despite the court's warnings that his action
may be dismissed, plaintiff failed to respond to the
court's order to show cause. (Dkt. 46). First, the court
warned plaintiff that a failure to respond to the motion to
dismiss may result in sanctions, including granting all or
part of the relief requested by defendant. (Dkt. 44). After
plaintiff did not respond, the show cause order indicated
that a failure to respond “will result in a
recommendation that the motion be granted or that the entire
matter be dismissed under Rule 41(b).” (Dkt. 46)
(emphasis in original). Despite these clear warnings,
plaintiff has provided no good reason why the undersigned
should not dismiss defendant Benson. See Labreck v.
U.S. Dep't of Treasury, 2013 WL 511031, at *2
(E.D. Mich. 2013) (recommending dismissal for plaintiff's
failure to comply with orders of the court), adopted
by 2013 WL 509964 (E.D. Mich. 2013).
given plaintiff's failure to respond to the court's
order to show cause, the undersigned sees no utility in
considering or imposing lesser sanctions. Indeed, having
already overcome one recommendation for dismissal (Dkts. 27,
28 and 29), it is noteworthy that plaintiff has not taken
meaningful steps to advance the prosecution of his case.
Plaintiff's sole filing since successfully challenging
the recommendation for dismissal was a motion for appointment
of counsel some eight months ago which was denied without
prejudice - thus leaving plaintiff with the opportunity
to revise his request should the matter survive dispositive
motions.Yet, plaintiff has in fact made no effort
to substantively respond to the defendant's filings.
Consequently, taken together, these factors support dismissal
for failure to prosecute. It is true that “district
courts should be especially hesitant to dismiss for
procedural deficiencies where, as here, the failure is by a
pro se litigant.” White v. Bouchard,
2008 WL 2216281, at *5 (E.D. Mich. May 27, 2008) (quoting
Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)).
However, “dismissal is appropriate when a pro
se litigant has engaged in a clear pattern of
delay.” Jourdan v. Jabe, 951 F.2d 108, 110
(6th Cir. 1991). Indeed, a sua sponte dismissal may
be justified by a plaintiff's “apparent abandonment
of [a] case.” White, 2008 WL 2216281, at *5
(citing Washington v. Walker, 734 F.2d 1237, 1240
(7th Cir. 1984)); see also Labreck 2013 WL 511031,
at *2; McMillian v. Captain D=s, 2007 WL
2436668, at *2 (D.S.C. 2007) (dismissing motion to dismiss
and to compel arbitration because of plaintiff's failure
to respond despite being advised of the applicable procedures
and possible consequences for failure to respond adequately).
undersigned concludes that, for the reasons discussed above,
plaintiff has effectively abandoned his case against
defendant Benson by failing to file a response to the motion
to dismiss as ordered, and for failing to comply with the
show cause order of the Court. Under these circumstances,
dismissal with prejudice is appropriate.