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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SCOTT SYZAK,

Plaintiff,

v.

BENSON,

Defendant.

_____________________________________/

Case No. 15-10928

Nancy G. Edmunds

United States District Judge

Stephanie Dawkins Davis

United States Magistrate Judge

REPORT AND RECOMMENDATION

RULE 41(b) DISMISSAL AND MOTION TO DISMISS (Dkt. 43)

I. PROCEDURAL HISTORY

Plaintiff, a prisoner in the custody of the Michigan Department of 

Corrections, filed this civil rights complaint on March 12, 2015. (Dkt. 1). On July 

13, 2017, this case was referred to the undersigned by District Judge Laurie J. 

Michelson for all pretrial purposes. (Dkt. 30). 

On January 4, 2018, defendant Anna Benson filed a motion to dismiss the 

complaint. (Dkt. 43). The following day, the Court ordered plaintiff to respond to 

the motion to dismiss by February 20, 2018. (Dkt. 44). In that Order, the Court 

warned plaintiff 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. 44, Pg ID 226) (emphasis in original). Having not received plaintiff=s 

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response by the deadline, on April 2, 2018, the undersigned ordered plaintiff to 

show cause in writing by April 23, 2018 why the court should not dismiss his 

complaint because of his failure to file a response. (Dkt. 46).1

 Alternatively, the 

court told plaintiff that he could file a response to the motion to dismiss by April 

23, 2018. Id. Again, the court warned plaintiff 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).”

Id. (emphasis in original).

As of the date of this Report and Recommendation, plaintiff has not filed a 

response to the court’s order to show cause or a substantive response to the motion 

to dismiss. Consequently, for the reasons set forth below, the undersigned 

RECOMMENDS that plaintiff=s complaint against defendant Benson be 

DISMISSED with prejudice under Federal Rule of Civil Procedure 41(b) and that 

her motion to dismiss be TERMINATED as moot.

 1 On January 24, 2018, plaintiff submitted a one page letter indicating that the prisoner 

who was performing his legal work was transferred to another prison. He also said that he 

cannot respond to the motion to dismiss because he does not understand it. He says that he 

cannot prosecute the case on his own. (Dkt. 45). Notably, in the month preceding plaintiff’s 

letter the Court denied his request for appointment of counsel (Dkt. 42), finding amongst other 

things, that the issues presented are not unduly complex and that plaintiff had not alleged facts 

sufficient to support his claim of limited law library access. Plaintiff did not provide any 

substantive response to the motion to dismiss.

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II. ANALYSIS AND CONCLUSIONS

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.

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.

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

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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.

Moreover, based on the warnings 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, 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). Importantly, despite 

the court’s warnings that his action may be dismissed, plaintiff failed to respond to 

the court’s order to show cause. (Dkt. 46). First, the court warned plaintiff that a 

failure to respond to the motion to dismiss may result in sanctions, including 

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granting all or part of the relief requested by defendant. (Dkt. 44). After plaintiff 

did not respond, the show cause order indicated that a failure to respond “will 

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

matter be dismissed under Rule 41(b).” (Dkt. 46) (emphasis in original). 

Despite these clear warnings, plaintiff has provided no good reason why the 

undersigned should not dismiss defendant Benson. 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. 

Indeed, having already overcome one recommendation for dismissal (Dkts. 27, 28

and 29), it is noteworthy that plaintiff has not taken meaningful steps to advance 

the prosecution of his case. Plaintiff’s sole filing since successfully challenging the 

recommendation for dismissal was a motion for appointment of counsel some eight 

months ago which was denied without prejudice – thus leaving plaintiff with the 

opportunity to revise his request should the matter survive dispositive motions. 2 

Yet, plaintiff has in fact made no effort to substantively respond to the defendant’s

 

2 The undersigned does not include the letter to the Court (Dkt. 45) referenced earlier, as the 

same was not presented as a motion or other pleading requiring a response from defendant.

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filings. Consequently, 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. 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 effectively abandoned his case against defendant Benson by failing to file a 

response to the motion to dismiss as ordered, and for failing to comply with the 

show cause order of the Court. Under these circumstances, dismissal with 

prejudice is appropriate.

III. RECOMMENDATION

For the reasons set forth above, the undersigned RECOMMENDS that

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plaintiff’s complaint against defendant Benson be DISMISSED with prejudice 

under Federal Rule of Civil Procedure 41(b) and that defendant’s motion to 

dismiss (Dkt. 43) 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 

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 

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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: May 25, 2018 s/Stephanie Dawkins Davis

Stephanie Dawkins Davis

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on May 25, 2018, 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: Scott Syzak #215189, Michigan 

Reformatory, 1342 West Main Street, Ionia, MI 48846.

s/Tammy Hallwood

Case Manager

(810) 341-7887

tammy_hallwood@mied.uscourts.gov

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