UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KIM HALL,

Plaintiff,

v.

THIRD JUDICIAL CIRCUIT COURT, et al,

Defendants.

_____________________________________/

Case No. 14-13578

George Caram Steeh

United States District Judge

Michael Hluchaniuk

United States Magistrate Judge

REPORT AND RECOMMENDATION

RULE 41(b) DISMISSAL AND MOTION TO DISMISS (Dkt. 9)

I. PROCEDURAL HISTORY

Plaintiff filed this prisoner civil rights case on September 12, 2014. (Dkt.

1). This matter was referred for all pretrial proceedings to the undersigned on

October 29, 2014. (Dkt. 10). On October 23, 2014, defendants filed a motion to

dismiss the complaint. (Dkt. 9). On December 9, 2014, the Court issued an order

requiring a response to the motion to dismiss by January 9, 2015, which

specifically provided 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. 11) (emphasis in original). Plaintiff failed to file a response to the motion to

dismiss. Instead, he filed a motion to stay the proceedings because he did not have

a copy of the complaint. (Dkt. 12). The Court denied the motion to stay, but

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extended the time for plaintiff to respond to the motion to dismiss and provided

him with a copy of the complaint. (Dkt. 13). Plaintiff was ordered to file a

response by February 17, 2015 and was again warned 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. 13) (emphasis in original). Plaintiff did

not file a response as ordered. On March 11, 2015, the Court issued an order for

plaintiff to show cause why this matter should not be dismissed based on

plaintiff’s failure to file a response to the motion to dismiss. (Dkt. 14). In the

alternative, plaintiff was permitted until April 8, 2015 to file a response to the

motion to dismiss. (Dkt. 14). The Show Cause Order specifically warned plaintiff

again that “[f]ailure to timely or adequately respond in writing to this Order to

Show Cause or timely file a response to the motion will result in a

recommendation that the motion be granted or that the entire matter be

dismissed under Rule 41(b)” and that no further extensions would be permitted. 

(Dkt. 14) (Emphasis in original). It is now one week past the deadline and

plaintiff has not filed any response to the pending motion to dismiss or the order to

show cause.

For the reasons set forth below, the undersigned RECOMMENDS that

plaintiff’s complaint be DISMISSED with prejudice pursuant to Federal Rule of

Civil Procedure 41(b) and that the pending motions to dismiss (Dkt. 9) be

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TERMINATED as MOOT.

II. ANALYSIS AND CONCLUSION

Under Federal Rule 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

629-30. “[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. 

Federal Rule of Civil Procedure 41 governs dismissals. As to involuntary

dismissals, it provides:

If the plaintiff fails to prosecute or to comply with these

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rules or a court order, a defendant may move to dismiss

the action or any claim against it. Unless the dismissal

order states otherwise, a dismissal under this subdivision

(b) and any dismissal not under this rule - except one for

lack of jurisdiction, improper venue, or failure to join a

party under Rule 19 - operates as an adjudication on the

merits.

Fed. R. Civ. P. 41(b). “Neither the permissive language of [Rule 41(b)] – which

merely authorizes a motion by the defendant – nor its policy requires us to

conclude that it was the purpose of the Rule to abrogate the power of courts,

acting on their own initiative, to clear their calendars of cases that have remained

dormant because of the inaction or dilatoriness of the parties seeking relief.” Link,

370 U.S. at 630. “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.” Id. at 629; see also Carter v. City of Memphis, Tenn., 636 F.2d 159,

161 (6th Cir. 1980) (“It is clear that the district court does have the power under

[Fed. R. Civ. P. 41(b)] to enter a sua sponte order of dismissal.”) (citing Link). 

Moreover, “district courts possess broad discretion to sanction parties for failing to

comply with procedural requirements.” Tetro, 173 F.3d at 991 (citing Carver, 946

F.2d at 453). And, “a district court can dismiss an action for noncompliance with

a local rule only 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.

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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)). In this case, the

Court warned plaintiff several times that dismissal in defendants’ favor would be

granted if he failed to file a substantive response to the motion to dismiss. (Dkt.

11, 13, 14). Thus, this factor weighs in favor of dismissal. With respect to the

first factor, just as 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. In this case, just as in

White, it is not clear whether plaintiff’s failure to file a timely response is the

result of willfulness, bad faith or fault. However, defendants cannot defend this

matter and should not be required to expend further resources where plaintiff has

failed to respond to the dispositive motion. Finally, given plaintiff’s repeated

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failures to comply with Court orders, the undersigned sees no utility in considering

or imposing lesser sanctions. Thus, none of the factors weigh against 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,

2008 WL 2216281, at *5 (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 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); 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). The undersigned

concludes that, for the reasons discussed above, plaintiff has “engaged in a clear

pattern of delay” by repeatedly failing to comply with orders of the Court and by

otherwise failing to respond to the motion to dismiss. Under these circumstances,

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in the view of the undersigned, dismissal with prejudice is appropriate.

III. RECOMMENDATION

For the reasons set forth above, the undersigned RECOMMENDS that

plaintiff’s complaint be DISMISSED with prejudice pursuant to Federal Rule of

Civil Procedure 41(b) and that defendants’ motion to dismiss (Dkt. 9) be

TERMINATED as MOOT.

The parties to this action may object to and seek review of this Report and

Recommendation, but are required to file any objections within 14 days of service,

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule

72.1(d). Failure to file specific objections constitutes a waiver of any further right

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health and

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some

issues but fail to raise others with specificity will not preserve all the objections a

party might have to this Report and Recommendation. Willis v. Sec’y of Health

and Human Servs., 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). Pursuant to Local Rule

72.1(d)(2), any objections must be served on this Magistrate Judge.

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,”

etc. Any objection must recite precisely the provision of this Report and

Recommendation to which it pertains. Not later than 14 days after service of an

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objection, the opposing party may file a concise response proportionate to the

objections in length and complexity. Fed.R.Civ.P. 72(b)(2), Local Rule 72.1(d). 

The response must specifically address each issue raised in the objections, in the

same order, and labeled as “Response to Objection No. 1,” “Response to Objection

No. 2,” etc. If the Court determines that any objections are without merit, it may

rule without awaiting the response.

Date: April 16, 2015 s/Michael Hluchaniuk

Michael Hluchaniuk

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on April 16, 2015, I electronically filed the foregoing paper

with the Clerk of the Court using the ECF system, which will send electronic

notification to all counsel of record and that I have mailed by U.S. Postal Service

to the following non-ECF participant: Kim Hall #184660, Oaks Correctional

Facility, 1500 Caberfae Highway, Manistee, MI 49660.

s/Tammy Hallwood

Case Manager

(810) 341-7887

tammy_hallwood@mied.uscourts.gov

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