United States District Court, E.D. Michigan, Southern Division
Terrence G. Berg United States District Judge.
REPORT AND RECOMMENDATION: RULE 41B
Stephanie Dawkins Davis United States Magistrate Judge.
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).
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.
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).
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 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.”).
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).
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. ...