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Clemons v. Akron EMT & Summa Health Emergency Physician

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

July 22, 2019

RICHARD CLEMONS, Plaintiff,
v.
AKRON EMT & SUMMA HEALTH EMERGENCY PHYSICIAN, Defendants.

          Terrence G. Berg United States District Judge.

          REPORT AND RECOMMENDATION: RULE 41B DISMISSAL

          Stephanie Dawkins Davis United States Magistrate Judge.

         I. PROCEDURAL HISTORY

         Plaintiff Richard Clemons filed this pro se civil rights complaint on August 20, 2018. (Dkt. 1). On October 29, 2018, this case was referred to the undersigned by District Judge Terrence G. Berg for all pretrial purposes. (Dkt. 9).

         Since Clemons filed the complaint, this Court's orders have been returned as “undeliverable.” (Dkts. 6, 11, 13, 15). Given that plaintiff failed to keep his address updated, as required, the Court issued an order requiring plaintiff to show cause by February 7, 2019, why this matter should not be dismissed. (Dkt. 14). The Court warned that “Failure to timely or adequately respond in writing to this Order to Show Cause will result in a recommendation that this matter be dismissed under Rule 41(b).” The order to show cause was served on plaintiff at the address listed on file with the Court.

         As of the date of this Report and Recommendation, plaintiff has not filed a response to the order to show cause, nor has he provided an updated address. Consequently, for the reasons set forth below, the undersigned RECOMMENDS that plaintiff's complaint 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 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.

         Moreover, based on the warning 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, and 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). Additionally, a Rule 41(b) dismissal is an appropriate sanction for a pro se litigant's failure to provide the court with information regarding his current address. Watsy v. Richards, 1987 WL 37151 (6th Cir. 1987); White v. City of Grand Rapids, 34 Fed.Appx. 210, 211 (6th Cir. May 7, 2002) (finding that a pro se prisoner's complaint “was subject to dismissal for want of prosecution because he failed to keep the district court apprised of his current address”); Rogers v. Ryan, 2017 WL 5150884, at *2 (E.D. Mich. Nov. 7, 2017) (“A Rule 41(b) dismissal is an appropriate sanction for a pro se litigant's failure to provide the court with information regarding his current address.”).

         Importantly, despite the court's warning that his action may be dismissed, plaintiff failed to respond to the Court's order to show cause. After several of the Court's orders were returned as “undeliverable, ” the Court ordered plaintiff to show cause why the action should not be dismissed for failure to keep his addressed updated. In the order to show cause, the Court warned that “Failure to timely or adequately respond in writing to this Order to Show Cause will result in a recommendation that this matter be dismissed under Rule 41(b).” (Dkt. 14). Despite this clear warning, plaintiff has provided no good reason why the undersigned should not dismiss the complaint. 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).

         And finally, 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. Thus, 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. ...


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