UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

JAMES BLACK, 

 Plaintiff, Civil Action No. 14-13581 

 Honorable Mark A. Goldsmith 

v. Magistrate Judge David R. Grand 

 

MICHAEL BOUCHARD and 

CORRECT CARE SOLUTIONS, 

 

 Defendants. 

__________________________________/ 

REPORT AND RECOMMENDATION TO DISMISS PLAINTIFF’S COMPLAINT [1] 

PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 41(b), AND TO DENY 

DEFENDANTS’ MOTIONS TO DISMISS [21, 27] AND TO COMPEL [32] AS MOOT 

I. PROCEDURAL HISTORY 

On September 16, 2014, Plaintiff James Black, then an inmate at the Oakland County 

Jail, filed a complaint against Defendants Michael Bouchard (“Bouchard”) and Correct Care 

Solutions (“CCS”) (collectively “Defendants”), pursuant to 42 U.S.C. §1983, alleging violations 

of his Eighth and Fourteenth Amendment rights. (Doc. #1). This case was referred to the 

undersigned for all pretrial purposes. (Doc. #7). 

On September 17, 2014, the District Court issued a Notice reminding the parties that they 

are required, pursuant to Eastern District of Michigan Local Rule 11.2, to promptly notify the 

clerk and all other parties whenever their address or contact information changes. (Doc. #3). On 

November 14, 2014, Plaintiff filed a Notice of Change of Address, indicating that he was then 

incarcerated at the Nevada Southern Detention Center in Pahrump, Nevada. (Doc. #17). 

Consequently, when CCS filed its motion to dismiss on December 3, 2014 (Doc. #21), the Court 

mailed an Order Requiring Response to Plaintiff at this Nevada address. (Doc. #22 and 12/4/14 

Text-Only Certificate of Service). The Court’s Order indicated that the deadline for Plaintiff’s 

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response to CCS’ motion was December 29, 2014, and specifically advised Plaintiff that, 

“Failure to file a response may result in a recommendation that Defendant’s motion be 

granted as unopposed and/or that Plaintiff’s case be dismissed.” (Doc. #22 at 1 (emphasis in 

original)). Reviewing the docket, there is no indication that Plaintiff did not receive this Order. 

In the meantime, however, on December 8, 2014, the Court received a Notice of Change 

of Address from Plaintiff, listing a new address in Portland, Oregon. (Doc. #23). Consequently, 

on December 11, 2014, the Court re-mailed to Plaintiff a copy of CCS’ motion and its Order 

Requiring Response to that address. (12/11/14 Text-Only Certificate of Service). On December 

29, 2014, however, this mail was returned as undeliverable. (Doc. #25). As a result, to ensure 

that every effort was made to provide Plaintiff with the relevant pleadings, the Court issued a 

Notice of Order Requiring Response to Defendant’s Motion to Dismiss on January 7, 2015, and 

sent that Notice – along with the Court’s prior Order Requiring Response and a copy of 

Defendant’s Motion to Dismiss – to Plaintiff’s new address in Oregon. (Doc. #26 and 1/7/15 

Text-Only Certificate of Service). On January 29, 2015, this mail too was returned to the Court 

as undeliverable. (Doc. #31). 

In addition, Bouchard filed a motion to dismiss on January 13, 2015. (Doc. #27). The 

next day, the Court issued an Order Requiring Response, indicating that the deadline for 

Plaintiff’s response to Bouchard’s motion was February 6, 2015, and again specifically advising 

Plaintiff that, “Failure to file a response may result in a recommendation that Defendant’s 

motion be granted as unopposed and/or that Plaintiff’s case be dismissed.” (Doc. #28 at 1 

(emphasis in original)). The Court mailed this Order to Plaintiff’s address on file, but on 

February 4, 2015, it also was returned to the Court as undeliverable. (Doc. #33). Although it 

appears that Plaintiff is no longer residing at the most recent address he provided to the Court (in 

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Portland, Oregon), he has not advised the Court of a new address. 

On February 12, 2015, when Plaintiff still had not responded to either defendant’s motion 

to dismiss, or provided the Court with his new address, the Court issued an Order to Show 

Cause, ordering Plaintiff to show cause, in writing, on or before February 27, 2015, why this 

Court should not recommend that his complaint be dismissed for failure to prosecute. (Doc. 

#34). In that Order, Plaintiff was warned that his “failure to comply with this Order will result in 

a recommendation that his case be dismissed.” (Id. at 4). On February 25, 2015, this Order to 

Show Cause also was returned to the Court as undeliverable. (Doc. #35). 

II. ANALYSIS 

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

dismissals, Rule 41(b) provides: 

If the plaintiff fails to prosecute or to comply with these 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). It is clear that, despite the somewhat permissive language of Rule 41(b), 

which contemplates a motion by a defendant, a federal court may sua sponte dismiss a claim for 

failure to prosecute or comply with an order. See Link v. Wabash R.R. Co., 370 U.S. 626, 630-32 

(1962); Steward v. City of Jackson, 8 F. App’x 294, 296 (6th Cir. 2001). As the Link court 

explained, “Neither the permissive language of [Rule 41(b)] B which merely authorizes a motion 

by the defendant B 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.” Id. 

at 630. “The power to invoke this sanction is necessary in order to prevent undue delays in the 

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disposition of pending cases and to avoid congestion in the calendars of the District Courts.” Id.

at 629-30. In other words, “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 v. Elliott Popham Pontiac,

Oldsmobile, Buick, and GMC Trucks, Inc., 173 F.3d 988, 992 (6th Cir. 1999) (citing Carver v. 

Bunch, 946 F.2d 451, 453 (6th Cir.1991)). 

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)). All of the factors favor dismissal here. The Court 

expressly warned Plaintiff that his case could be dismissed with prejudice if he failed to apprise 

the Court of any address changes, to file responses to Defendants’ motions to dismiss, or to 

respond to the Court’s Order to Show Cause. (Docs. #3, 34). Nevertheless, Plaintiff has failed 

to update his contact information or respond to the pending dispositive motions, meaning that the 

first1

 and third factors weigh in favor of dismissal. As to the second factor, the defendants are 

prejudiced by having this action pending against them without it being advanced to a timely 

conclusion due to Plaintiff’s apparent abandonment of his claims. This is particularly true where 

 

1

 With respect to the first factor, just as in White v. Bouchard, 2008 WL 2216281, at *5 (E.D. 

Mich. May 27, 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 which 

plaintiff has apparently abandoned, not to mention the investment of time and resources 

expended to defend this case.” Id. 

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both Defendants have filed dispositive motions, to which Plaintiff has failed to respond. And, 

finally, given Plaintiff’s repeated failures to comply with this Court’s rules and orders, the Court 

sees no utility in considering or imposing a lesser sanction. Thus, all of the factors weigh in 

favor of 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)). Here, for the reasons 

discussed above, Plaintiff has “engaged in a clear pattern of delay” by failing to comply with 

orders of the Court and by failing to file papers necessary for the prosecution of his claims. 

Under these circumstances, dismissal is appropriate. See Fed. R. Civ. P. 41(b). 

III. RECOMMENDATION 

Based on the foregoing, the Court RECOMMENDS that Plaintiff’s complaint [1] be 

DISMISSED WITH PREJUDICE, and that Defendants’ Motions to Dismiss [21, 27] and 

Motion to Compel [32] be DENIED as MOOT. 

Dated: March 16, 2015 s/David R. Grand 

Ann Arbor, Michigan DAVID R. GRAND 

 United States Magistrate Judge 

 

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NOTICE TO THE PARTIES REGARDING OBJECTIONS 

Within 14 days after being served with a copy of this Report and Recommendation, any 

party may serve and file specific written objections to the proposed findings and 

recommendations set forth above. See 28 U.S.C. §636(b)(1); Fed. R. Civ. P. 72(b)(2); E.D. 

Mich. LR 72.1(d)(1). Failure to timely file objections constitutes a waiver of any further right of 

appeal. Thomas v. Arn, 474 U.S. 140, (1985); United States v. Sullivan, 431 F.3d 976, 984 (6th 

Cir. 2005). Only specific objections to this Report and Recommendation will be preserved for 

the Court’s appellate review; raising some objections but not others will not preserve all 

objections a party may have. See Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 

1373 (6th Cir. 1987); see also Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596-97 (6th Cir. 2006). 

Copies of any objections must be served upon the Magistrate Judge. See E.D. Mich. LR 

72.1(d)(2). 

A party may respond to another party’s objections within 14 days after being served with 

a copy. See Fed. R. Civ. P. 72(b)(2); 28 U.S.C. §636(b)(1). Any such response should be 

concise, and should address specifically, and in the same order raised, each issue presented in the 

objections. 

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 March 16, 2015. 

 s/Eddrey O. Butts 

 EDDREY O. BUTTS 

 Case Manager 

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