Report and Recommendation

Dismissal and Motion for Summary Judgment 1 Knight v. Allen-Sabo; 08-14690

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GRIFFIN KNIGHT,

Case No. 08-14690

Plaintiff,

v. Stephen J. Murphy, III

United States District Judge

SHERRY ALLEN-SABO,

Michael Hluchaniuk

Defendant. United States Magistrate Judge

 /

REPORT AND RECOMMENDATION

DISMISSAL FOR FAILURE TO PROSECUTE AND

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Dkt. 21)

I. PROCEDURAL HISTORY

On November 5, 2008, pro se plaintiff Griffin Knight filed a complaint,

requesting a preliminary injunction, against eviction from his apartment. (Dkt. 1). 

Plaintiff also applied for in forma pauperis status, which was granted on

November 19, 2008. (Dkt. 2, 4). This matter was referred to the undersigned for

all pretrial purposes by District Judge Steven J. Murphy, III. (Dkt. 3). Given

plaintiff’s request for injunctive relief, the Court contacted the parties regarding

conducting a hearing immediately, even though the complaint was not yet served. 

A telephonic hearing was conducted on November 24, 2008, with plaintiff,

defendant, and counsel for defendant. Unfortunately, plaintiff was unable to hear

2:08-cv-14690-SJM-MJH Doc # 35 Filed 07/06/09 Pg 1 of 8 Pg ID 523
 The Court received a letter from plaintiff stating that he did not 1

understand what occurred at the hearing on December 3, 2008. 

 In addition to objections, plaintiff also filed an appeal to the Sixth Circuit 2

Court of Appeals. (Dkt. 12). On March 5, 2009, the Sixth Circuit dismissed the

appeal for want of jurisdiction and denied plaintiff’s motion for reconsideration on

May 13, 2009. (Dkt. 30, 33).

Report and Recommendation

Dismissal and Motion for Summary Judgment 2 Knight v. Allen-Sabo; 08-14690

the proceedings and the Court adjourned the hearing. Defendant agreed to adjourn

the state court eviction proceeding until this Court made a decision on plaintiff’s

request for preliminary injunctive relief. The Court rescheduled the hearing for

December 3, 2008. On November 26, 2008, defendant filed a written response to

plaintiff’s motion for injunctive relief. (Dkt. 6). 

Plaintiff appeared at the December 3, 2008 hearing in-person and

defendant’s counsel appeared by telephone. The Court permitted plaintiff to argue

the basis for his motion for preliminary injunction at length and also permitted him

additional time to submit any additional written materials by December 8, 2008. 

On December 11, 2008, defendant filed an answer to the complaint with

affirmative defenses. (Dkt. 7). The Court received no further supportive materials

from plaintiff. On December 15, 2008, the undersigned recommendation that 1

plaintiff’s motion for preliminary injunction be denied. (Dkt. 8). The District

Court has not yet resolved plaintiff’s objections to this recommendation.2

2:08-cv-14690-SJM-MJH Doc # 35 Filed 07/06/09 Pg 2 of 8 Pg ID 524
Report and Recommendation

Dismissal and Motion for Summary Judgment 3 Knight v. Allen-Sabo; 08-14690

On January 30, 2009, defendant filed a motion for summary judgment. 

(Dkt. 21, 23). On February 12, 2009, the Court ordered plaintiff to respond to

defendant’s motion by March 9, 2009. (Dkt. 29). Plaintiff did not file a response. 

On June 12, 2009, the Court ordered plaintiff to show cause, by June 29, 2009,

why this matter should not be dismissed for failure to prosecute. (Dkt. 34). 

Plaintiff has not responded to the show cause order. 

For the reasons set forth below, the undersigned RECOMMENDS that

plaintiff’s complaint be DISMISSED with prejudice for failure to prosecute. The

undersigned further recommends that defendant’s motion for summary judgment

be DENIED as moot.

II. ANALYSIS AND CONCLUSION

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 merits.

2:08-cv-14690-SJM-MJH Doc # 35 Filed 07/06/09 Pg 3 of 8 Pg ID 525
Report and Recommendation

Dismissal and Motion for Summary Judgment 4 Knight v. Allen-Sabo; 08-14690

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.

2:08-cv-14690-SJM-MJH Doc # 35 Filed 07/06/09 Pg 4 of 8 Pg ID 526
Report and Recommendation

Dismissal and Motion for Summary Judgment

5 Knight v. Allen-Sabo; 08-14690

In this case, plaintiff ignored the orders of this Court and violated both the

Federal Rules of Civil Procedure and the Local Rules for the Eastern District of

Michigan. 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 plainly warned plaintiff that his case would be

dismissed with prejudice if he again failed to respond to an order of the Court. 

(Dkt. 34). 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, “defendant[] 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 third factors

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

2:08-cv-14690-SJM-MJH Doc # 35 Filed 07/06/09 Pg 5 of 8 Pg ID 527
Report and Recommendation

Dismissal and Motion for Summary Judgment 6 Knight v. Allen-Sabo; 08-14690

participate in this case for nearly six months at the district court level and the

denial of all relief in the Court of Appeals nearly two months ago, 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,

at *8, 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, at *5, citing, Washington v. Walker, 734 F.2d 1237, 1240 (7th Cir. 1984).

Under the circumstances, the undersigned suggests that dismissal with prejudice is

appropriate. 

III. RECOMMENDATION 

Based on the foregoing, the undersigned RECOMMENDS that plaintiff’s

complaint be DISMISSED with prejudice. The undersigned further recommends

that defendant’s motion for summary judgment be DENIED 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 10 days of service,

2:08-cv-14690-SJM-MJH Doc # 35 Filed 07/06/09 Pg 6 of 8 Pg ID 528
Report and Recommendation

Dismissal and Motion for Summary Judgment

7 Knight v. Allen-Sabo; 08-14690

as provided for in 28 U.S.C. § 636(b)(1) and Local Rule 72.1(d)(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. 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 10 days after service of an

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

objections in length and complexity. 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.

s/Michael Hluchaniuk 

Date: July 6, 2009 Michael Hluchaniuk

United States Magistrate Judge

2:08-cv-14690-SJM-MJH Doc # 35 Filed 07/06/09 Pg 7 of 8 Pg ID 529
Report and Recommendation

Dismissal and Motion for Summary Judgment 8 Knight v. Allen-Sabo; 08-14690

CERTIFICATE OF SERVICE

I certify that on July 6, 2009, I electronically filed the foregoing paper with

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

notification to the following: Douglas A. Hyman, and I certify that I have mailed

by United States Postal Service the paper to the following non-ECF participants:

Griffin Knight, 1545 Woodward, Apt. # 703, Detroit, MI 48226.

s/James P. Peltier 

Courtroom Deputy Clerk

U.S. District Court

600 Church Street

Flint, MI 48502

(810) 341-7850

pete_peltier@mied.uscourts.gov

2:08-cv-14690-SJM-MJH Doc # 35 Filed 07/06/09 Pg 8 of 8 Pg ID 530