UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

BERND RATFISCH,

Plaintiff,

v.

BAY COUNTY JAIL, et. al.,

Defendants.

_____________________________________/

Case No. 14-13722

Robert H. Cleland

United States District Judge

Michael Hluchaniuk

United States Magistrate Judge

REPORT AND RECOMMENDATION

RULE 41(B) DISMISSAL, MOTION TO COMPEL (Dkt. 23)

AND MOTION TO DISMISS (Dkt. 25)

I. PROCEDURAL HISTORY

Plaintiff, an inmate formerly in the custody of the Michigan Department of

Corrections, brings this action under 42 U.S.C. § 1983, claiming a violation of his

civil rights under the United States Constitution. (Dkt. 1). On December 14,

2014, this case was referred to the undersigned for all pretrial purposes by District

Judge Robert H. Cleland. (Dkt. 12).

On May 26, 2015, defendants filed a motion to compel discovery from

plaintiff. (Dkt. 23). On June 12, 2015, the Court entered an order requiring a

response to defendants’ motion by June 29, 2014. (Dkt. 24). That order provided

that “failure to file a response may result in sanctions, including granting all

or part of the relief requested by the moving party.” (Dkt. 24) (emphasis in

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original). A review of the docket revealed that plaintiff had not filed a timely

response to this motion. Thus, the Court issued an order for plaintiff to show

cause in writing by September 28, 2015, why the undersigned should not

recommend that plaintiff’s complaint be dismissed for failure to file a response. 

(Dkt. 26). Alternatively, the Court indicated that plaintiff could file a response to 1

the motion to dismiss by that same date. Id. In the show cause order, the Court

specifically warned that “[f]ailure to timely or adequately respond in writing to

this Order to Show Cause or timely file a response to the motion to dismiss

will result in a recommendation that the motion be granted or that the entire

matter be dismissed under Rule 41(b).” (Dkt. 26) (emphasis in original). 

Plaintiff failed to timely respond to the show cause order or file a response to the

pending motion.

For the reasons set forth below, the undersigned RECOMMENDS that

plaintiff’s complaint against defendants be DISMISSED with prejudice under

Federal Rule of Civil Procedure 41(b) and that the pending motions (Dkt. 23, 25)

be TERMINATED as MOOT. 

II. ANALYSIS AND CONCLUSION

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.

 Defendants have also filed a motion to dismiss on this same basis. (Dkt. 25). 1

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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. 

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

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

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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

v. Wabash R. Co., 370 U.S. 626, 630 (1962). “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; 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 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). 

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.

The Sixth Circuit considers four factors in reviewing the decision of a

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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 in writing that dismissal in defendants’ favor would be

granted if he failed to file a response to the motion and to the order to show cause. 

(Dkts. 26). 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. Thus, the first and second

factors weigh in favor of dismissal. Finally, given plaintiff’s failure to file

responses as ordered and failure to respond to the order to show cause, the

undersigned sees no utility in considering or imposing lesser sanctions. Thus,

none of the factors weigh against dismissal for failure to prosecute. Given the

foregoing conclusions, the undersigned also recommends that all pending motions

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be terminated as moot.

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 motions for summary judgment. Under these circumstances, in

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

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III. RECOMMENDATION

For the reasons set forth above, the undersigned RECOMMENDS that

plaintiff’s complaint against defendants be DISMISSED with prejudice under

Federal Rule of Civil Procedure 41(b) and that the pending motions (Dkt. 23, 25)

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

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

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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: October 26, 2015 s/Michael Hluchaniuk

Michael Hluchaniuk

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on October 26, 2015, I electronically filed the foregoing paper

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

notification to the following: all counsel of record and that I have mailed by

United States Postal Service to the following non-ECF participant: Bernd Ratfisch,

#513707, 1303 Ledyard Road, Essexville, MI 48732.

s/Tammy Hallwood

Case Manager

(810) 341-7887

tammy_hallwood@mied.uscourts.gov

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