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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAMES EDWARD COLEN,

Plaintiff, Civil Action No. 14-12948

 Honorable Paul D. Borman

v. Magistrate Judge Elizabeth A. Stafford

 

CORIZON MEDICAL SERVICES, et al.

 

Defendants. 

__________________________________/

REPORT AND RECOMMENDATION TO DISMISS SUA SPONTE

DEFENDANTS AETNA AND VICTOR KACZMER

Plaintiff James Edward Colen, a prisoner proceeding pro se, brings 

this action under 42 U.S.C. § 1983, alleging various violations of both his 

Eighth and Fourteenth Amendment rights during his incarceration at Gus 

Harrison Correctional Facility (ARF) in Adrian, Michigan.

1 In December 

2014, Colen was granted leave to amend his complaint to add AETNA as a 

defendant, and was later ordered to provide an address for AETNA by 

September 2, 2015, as his waiver of service was returned unexecuted. 

[ECF No. 14; ECF No. 56; ECF No. 57]. Colen never provided an address. 

 1 The Honorable Paul D. Borman referred this matter for report and 

recommendation on dispositive matters. [ECF No 9; ECF No. 33]. 

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Additionally, service for Defendant Victor Kaczmer was never achieved. 

[ECF No. 52]. 

If a plaintiff fails to prosecute an action, it can be dismissed either 

under the Court’s inherent power to control its docket or involuntarily under 

Federal Rule of Civil Procedure 41(b). Link v. Wabash R. Co., 370 U.S. 

626, 629-632, (1962). The authority to dismiss a plaintiff’s case for failure 

to prosecute is available to the district court “as a tool to effect 

management of its docket and avoidance of unnecessary burdens on the 

tax-supported courts and opposing parties.” Schafer v. City of Defiance 

Police Dep't., 529 F.3d 731, 736 (6th Cir. 2008) (quoting Knoll v. AT&T, 

176 F.3d 359, 363 (6th Cir. 1999)). And this Court’s local rules provide that 

when “the parties have taken no action for a reasonable time, the court 

may, on its own motion after reasonable notice or an application of a party, 

enter an order dismissing ... the case unless good cause is shown.” E.D. 

Mich. LR 41.2. “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 Sixth Circuit has set forth four factors to be used as guidance 

when determining whether a case should be dismissed for failure to 

prosecute under Fed. R. Civ. P. 41(b): “(1) whether the party’s failure is 

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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.” Knoll, 176 F.3d at 363.

Here, considerable time has passed with Colen failing to achieve 

service on either party. Dispositive motions have been filed and decided. 

As to AETNA, the Court warned Colen that failure to provide an address 

could result in dismissal. [ECF No. 57]. Because of the considerable delay 

in Colen achieving service on these two parties, no alternative sanction 

would protect the integrity of the pretrial process. Under these 

circumstances, “dismissal is the only appropriate remedy” because Colen

“has effectively abandoned the case” with respect to these defendants. 

Morley v. Comm’r of Soc. Sec., No. 12-14653, *3, 2013 WL 2051326 (E.D. 

Mich. May 14, 2013). For those reasons, the Court RECOMMENDS that 

this action be DISMISSED against AETNA and Victor Kaczmer for failure to 

prosecute.

s/Elizabeth A. Stafford_______

ELIZABETH A. STAFFORD

United States Magistrate Judge

Dated: February 5, 2019

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NOTICE TO THE PARTIES REGARDING OBJECTIONS

Either party to this action may object to and seek review of this 

Report and Recommendation, but must act within fourteen days of service 

of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed. R. Civ. 

P. 72(b)(2). Failure to file specific objections constitutes a waiver of any 

further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. 

Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 

638 F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but 

fail to raise others with specificity will not preserve all objections that party 

might have to this Report and Recommendation. Willis v. Secretary of 

HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers 

Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). A copy of any objection 

must be served upon this Magistrate Judge. E.D. Mich. LR 72.1(d)(2).

Each objection must be labeled as “Objection #1,” “Objection #2,” 

etc., and must specify precisely the provision of this Report and 

Recommendation to which it pertains. Not later than fourteen days after 

service of objections, the non-objecting party must file a response to 

the objections, specifically addressing each issue raised in the objections in 

the same order and labeled as “Response to Objection #1,” “Response to 

Objection #2,” etc. The response must be concise and proportionate in 

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length and complexity to the objections, but there is otherwise no page 

limitation. If the Court determines that any objections are without merit, it 

may rule without awaiting the response.

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served

upon counsel of record and any unrepresented parties via the Court’s ECF 

System to their respective email or First-Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on February 5, 2019.

s/Marlena Williams

MARLENA WILLIAMS

Case Manager

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