Opinion
2:21-cv-10903
03-14-2022
KEVIN BEELER, Plaintiff, v. RIVAS and SCHILLER, Defendants.
George Caram Steeh District Judge
REPORT AND RECOMMENDATION TO DISMISS CASE FOR FAILURE TO PROSECUTE
KIMBERLY G. ALTMAN UNITED STATES MAGISTRATE JUDGE
I. Introduction
This is a prisoner civil rights case under 42 U.S.C. § 1983. Plaintiff Kevin Beeler, proceeding pro se, filed a complaint naming Rivas and Schiller as defendants. As will be explained, since the filing of the complaint, Beeler has not participated in the case and mailings have been returned as undeliverable. Most recently, the undersigned issued an order to show case as to why the case should not be dismissed for failure to prosecute. Beeler did not respond. Accordingly, the undersigned RECOMMENDS that the case be DISMISSED for failure to prosecute. 1
II. Background
Beeler filed a complaint on April 9, 2021, claiming violations of his First and Eighth Amendment rights. (ECF No. 1). The case was stayed and referred to the Pro Se Early Prisoner Mediation Program. (ECF No. 5). The case was later excluded from mediation and the stay was lifted because Beeler “was released from custody and failed to update his address with the Court.” (ECF No. 13, PageID.59). Several mailings from the Court to Beeler's address of record-the correctional facility where he was previously incarcerated-have been returned as undeliverable. See ECF Nos. 8 (order granting IFP), 9 (order staying case), 10 (notice regarding parties' responsibility to notify Court of address change), 12 (order setting mediation conference), 13 (order excluding the case from mediation), 18 (order referring pretrial matters), and 20 (order directing service without prepayment of costs).
On February 17, 2022, the undersigned ordered Beeler to show cause why the case should not be dismissed, explaining in part:
On February 15, 2022, Defendants filed a motion to dismiss or for summary judgment on the grounds that Beeler failed to exhaust his administrative remedies. (ECF No. 23).
Parties who are not represented must keep the Court informed of their contact information. E.D. Mich. LR 11.2. When a pro se party fails to promptly update his contact information, he may face sanctions, including dismissal of the complaint. Id.; Bugg v. Bauman, No. 2:19-CV-10262, 2020 WL 7346690, at *1 (E.D. Mich. Oct. 19, 2020).2 (ECF No. 24, PageID.150). Beeler was ordered to serve notice of his current address to the Clerk by March 10, 2022, and show cause in writing why his complaint should not be dismissed for violation of Local Rule 11.2 or for failure to prosecute under Fed.R.Civ.P. 41(b). (Id.). Beeler was also directed to show cause in writing by that date why the Court should not dismiss defendant Rivas for failure to timely serve him under Federal Rule of Civil Procedure 4(m) or for failure to prosecute under Rule 41(b). (Id.). Beeler was advised that the failure to timely respond to the show cause order could result in a recommendation that the complaint be dismissed. (Id.).
Beeler did not respond to the order to show cause and on March 10, 2022 (the day his response was due), the order was returned as undeliverable. (ECF No. 25).
III. Discussion
As noted in the order to show case, Rule 11.2 of the Local Rules of the Eastern District of Michigan authorizes dismissal of a case based upon a party's failure to keep the Court apprised of address changes and updated contact information. The rule states:
Every attorney and every party not represented by an attorney must include his or her contact information consisting of his or her address, e-mail address, and telephone number on the first paper that person files in a case. If there is a change in the contact information, that person promptly must file and serve a notice with the new contact information. The failure to file promptly current contact information3
may subject that person or party to appropriate sanctions, which may include dismissal, default judgment, and costs.E.D. Mich. L.R. 11.2. Pro se litigants have the same obligation as an attorney to notify the court of a change of address. Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988).
Additionally, Federal Rule of Civil Procedure 41(b) authorizes a federal court to dismiss a case based upon the “failure of the plaintiff to prosecute or to comply with these rules or any order of the court . . ., ” Fed.R.Civ.P. 41(b), and Rule 41.2 of the Local Rules of the Eastern District of Michigan authorizes the court to dismiss a case “when it appears that . . . the parties have taken no action for a reasonable time.” E.D. Mich. L.R. 41.2. The Court may therefore dismiss a civil action for failure to prosecute under these rules. See Mulbah v. Detroit Bd. of Ed., 261 F.3d 586, 589 (6th Cir. 2001) (citing Link v. Wabash R.R. Co., 370 U.S. 626 (1962)).
Here, Beeler had a duty to provide the court with his current address and has been warned that a failure to do so may result in dismissal of his case. As summarized above, all mail sent to Beeler at the address he provided to the Court has been returned as undeliverable since October 6 of last year. (ECF No. 13). He has failed to comply with Local Rule 11.2 and the Court's order to show cause. Under these circumstances, Beeler has abandoned his case and dismissal is warranted. See e.g., White v. City of Grand Rapids, 34 Fed.Appx. 210, 211 (6th Cir. 2002) 4 (affirming dismissal of complaint for want of prosecution based upon failure to provide current address); Harkleroad v. Astrue, No. 4:03-CV-15, 2011 WL 3627161, at *3 (N.D. Ohio Aug. 17, 2011) (“Indeed, dismissal for failure to prosecute may be appropriate when a pro se plaintiff fails to keep the court apprised of her current address.”).
VI. Conclusion
For the reasons stated above, it is RECOMMENDED that Beeler's case be DISMISSED for failure to prosecute.
NOTICE TO PARTIES REGARDING OBJECTIONS
The parties to this action may object to and seek review of this Report and Recommendation. Any objections must be filed 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, 144 (1985); Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 508 (6th Cir. 1991). Filing objections that raise some issues but fail to raise others with specificity will not preserve all the objections a 5 party might have to this Report and Recommendation. Willis v. Sec 'y of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. DetroitFed'n of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Under Local Rule
72.1(d)(2), any objections must be served on this Magistrate Judge.
Any objections must be labeled as “Objection No. 1, ” and “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); E.D. Mich. LR 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. 6