Report and Recommendation

Sue Sponte Dismissal

1 Beebe v. Birkett; 08-14995

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHAEL JERRY BEEBE, Case No. 08-14995

Plaintiff, David M. Lawson

v. United States District Judge

TIM BEAVERS, GERRY WYMA, Michael Hluchaniuk

and DAVE BURNETT, United States Magistrate Judge

Defendants.

 /

REPORT AND RECOMMENDATION

DISMISSAL UNDER RULE 41

AND MOTION FOR SUMMARY JUDGMENT (Dkt. 41)

I. PROCEDURAL HISTORY

Plaintiff filed a prisoner civil rights action on December 2, 2008 against

various employees of the Michigan Department of Corrections. (Dkt. 1). On

September 20, 2010, defendants Beavers, Burnett, and Wyma filed a motion for

summary judgment. (Dkt. 41). The Court issued a scheduling order requiring

plaintiff to file a response to the motion to dismiss by November 4, 2010. (Dkt.

44). The scheduling order 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. 44) (emphasis in original). Plaintiff failed to file a

timely response to defendants’ motion for summary judgment, did not move for an
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extension of time, and did not notify the Court of any change in his address. On

November 15, 2010, the Court issued an order for plaintiff to show cause why his

claims against defendants should not be dismissed for failure to respond to the

motion for summary judgment, by December 1, 2010. (Dkt. 46). In the order to

show cause, plaintiff was warned that failure to comply with the order to show

cause may result in dismissal of plaintiff’s complaint. (Dkt. 46). Plaintiff has not

filed any response to the order to show cause. 

For the reasons set forth below, the undersigned RECOMMENDS that

plaintiff’s claims against defendants be DISMISSED with prejudice for failure to

prosecute and that defendants’ motion for summary judgment be DENIED as

moot.

II. ANALYSIS AND CONCLUSION

“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 v.

Wabash R. Co., 370 U.S. 626, 629 (1962). “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),
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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

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
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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

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 that his case would be dismissed with prejudice if he failed

to file a response to the motion for summary judgment or to file a response to the

order to show cause. (Dkt. 44, 46). Thus, this factor weighs in favor of dismissal. 
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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 failure to

repeated failure to file responses as ordered, 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). Here, plaintiff

repeatedly failed to comply with orders of the court. Under the circumstances, in

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

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

claims against defendants be DISMISSED with prejudice for failure to prosecute

and that defendants’ 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 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). 
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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: December 7, 2010 s/Michael Hluchaniuk 

Michael Hluchaniuk

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on December 7, 2010, I electronically filed the foregoing paper

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

notification to the following: Michael R. Dean, and I certify that I have mailed by

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

Michael Beebe, #240491, 6149 Horger Street, Dearborn, MI 48126.

s/Tammy Hallwood 

Case Manager

(810) 341-7887

tammy_hallwood@mied.uscourts.gov