UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANTHONY CLARK, 

Plaintiff, Case No. 09-12717

Honorable Denise Page Hood

v. 

NURSE SCOTT, 

Defendant.

_____________________________________________/

ORDER ACCEPTING REPORT AND RECOMMENDATION 

& MODIFYING IN PART

I. Introduction

This matter is before the court on Magistrate Judge Charles E. Binder’s Report and

Recommendation, dated August 20, 2010 [Dkt. No. 14]. Plaintiff has not filed objections as of

this date.

 Plaintiff, Anthony Clark (“Clark”), filed this action, pro se, on July 9, 2009, as a

prisoner of the State of Michigan. Magistrate Judge Binder filed a Report and Recommendation

(“R&R”) on September 3, 2009, dismissing the case against all named defendants sua sponte. 

The Court accepted in part and rejected in part the R&R of the Magistrate Judge. (Dkt. No. 8). 

The Court ordered the U.S. Marshal’s Service to serve Defendant Scott, but service failed

because of her discontinued employment at FCI Milan. The Court then issued an Order to Show

Cause that Clark either provide a current address for Defendant Scott or show cause in writing

by July 14, 2010, why a R&R should not be entered recommending that Defendant Scott be

dismissed for failure to serve. (Dkt. No. 13). Clark has not responded to the Order to Show

Cause and for the reasons set forth below, the case should be dismissed without prejudice. 

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II. Standard of Review 

A. Report and Recommendation 

The standard of review by the district court when examining a Report and

Recommendation is set forth in 28 U.S.C. § 636. This Court “shall make a de novo

determination of those portions of the report or the specified proposed findings or

recommendations to which an objection is made.” 28 U.S.C. § 636(B)(1)(c). The Court “may

accept, reject or modify, in whole or in part, the findings or recommendations made by the

Magistrate.” Id. 

In order to preserve the right to appeal the Magistrate Judge’s recommendation, a party

must file objections to the Report and Recommendation within fourteen (14) days of service of

the Report and Recommendation. Fed. R. Civ. P 72(b)(2). Failure to file specific objections

constitutes a waiver of any further right to appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard

v. Secretary of Health and Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters,

638 F.2d 947 (6th Cir. 1981). 

III. Applicable Law & Analysis

The Court agrees with the Magistrate Judge’s application of balancing the difficulties a

pro se litigant faces, with that of the “defendant’s right to a fair and timely resolution of

litigation, and therefore pro se litigants are not to be accorded any special consideration when

they fail to adhere to readily-comprehended court deadlines.” See Jourdan v. Jabe, 951 F.2d 108,

110 (6th Cir. 1991). Rule 41(b) of the Federal Rules of Civil Procedure allows a court to dismiss

a case for “failure of the plaintiff to prosecute or to comply with the rules or order of the court...”

Fed. R. Civ. P. 41 (b). “Not only may a district court dismiss for want of prosecution upon

motion of a defendant, but it may also sua sponte dismiss an action whenever necessary to

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‘achieve the orderly and expeditious disposition of cases.’” Anthony v. Marion County General

Hospital, 617 F>2d 1164, 1167 (5th Cir. 1980) (quoting Link v. Wabash Railroad Co., 370 U.S.

626, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962)). 

Though the Court agrees with the Magistrate Judge that the case should be dismissed on

the grounds of Clark’s failure to respond to the Order to Show Cause, the dismissal should be

without prejudice. The Court has already decided that Defendant Scott is an appropriate

defendant and considering the circumstances surrounding Clark’s current situation should

warrant such a decision. 

IV. Conclusion

For the reasons set forth above, 

IT IS ORDERED that Magistrate Charles E. Binder’s August 20, 2010 Report and

Recommendation [No. 14, 8/20/2010] is ACCEPTED with modifications as this Court’s findings

of fact and conclusions of law. 

IT IS FURTHER ORDERED that this cause of action is DISMISSED, sua sponte, 

WITHOUT PREJUDICE. 

S/Denise Page Hood 

Denise Page Hood

United States District Judge

Dated: January 13, 2011

I hereby certify that a copy of the foregoing document was served upon Anthony Clark,

c/o Evelyn Goods, 1950 W. Devon, Chicago, IL 60660-1000 on January 13, 2011, by electronic

and/or ordinary mail.

S/Shawntel R. Jackson 

Case Manager

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