Opinion
1:23-12942
12-12-2024
ALANTE DAJUAN DEATRICK, Plaintiff, v. SHERARD DALTON. et al., Defendants.
Thomas L. Ludington, Magistrate Judge
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION TO DISMISS THIS MATTER PURSUANT TO FED. R. CIV. P. 41(b) and DEEM MOOT THE PENDING DISPOSITIVE MOTION (ECF No. 21)
ANTHONY P. PATTI, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION: The Court should DISMISS this matter pursuant to Fed.R.Civ.P. 41(b) and DEEM MOOT the pending dispositive motion (ECF No. 21).
II. REPORT:
A. Background
Plaintiff Alante Dajuan Deatrick, proceeding in pro per, initiated this case on November 20, 2023. (ECF No. 1.) On May 14, 2024, the case was referred to me for all pretrial proceedings, including a hearing and determination of all non-dispositive matters pursuant to 28 U.S.C. § 636(b)(1)(A) and/or a report and recommendation on all dispositive matters pursuant to 28 U.S.C. § 636(b)(1)(B). (See ECF No. 14). On July 16, 2024, Defendants Willis Chapman and Kristopher Steece filed a motion for summary judgment on the basis of exhaustion. (ECF No. 21.) Under the local rules, a response to Defendants' motion was due within 21 days following service of the motion. E.D. Mich. LR 7.1(e)(2)(A). The deadline passed with no response filed, and, six weeks after the motion was filed, I entered an order requiring a response to the motion for summary judgment by September 16, 2024. (ECF No. 22.) Once again, this deadline passed with no response being filed.
It bears noting that the order requiring a response was sent to Plaintiff's address of record at Macomb Correctional Facility (“MCF”), and was not returned as undeliverable. A search of the Michigan Department of Corrections website indicates that Plaintiff is still housed at MCF. See https://mdocweb.state.mi.us/otis2/otis2profile.aspx?mdocNumber=984075 (last visited 12/11/24).
Three months after the initial deadline, and almost two months after the extended deadline, no response had been filed. I thus issued an order to show cause why the case should not be dismissed for lack of prosecution. (ECF No. 23.)
B. Plaintiff has not complied with the show cause order.
In my November 14, 2024 order to show cause, I required Plaintiff to respond by December 6, 2024 as to why the case should not be dismissed for lack of prosecution. (ECF No. 23.) The order was sent to Plaintiff's address of record and was not returned as undeliverable. The order specifically provided:
. . . ON OR BEFORE Friday, December 6, 2024, Plaintiff is ORDERED TO SHOW CAUSE, in writing, as to (1) why this case should not be dismissed in accordance with Federal Rule of CivilProcedure 41(b) and Eastern District of Michigan Local Rule 41.2 for his failure to comply with the Court's order [(ECF No. 22)] and/or under Fed.R.Civ.P. 41(b) for his failure to prosecute; and, (2) also propose a reasonable and conservative extended deadline for filing a response to Defendants' pending motion, should the Court choose to permit a response. Failure to comply with this Order shall result in a Report and Recommendation that the Court dismiss this action pursuant to Federal Rule of Civil Procedure 41(b) and E.D. Mich. LR 41.2. (Id., PageID.125-126 (emphases in original).) To date, Plaintiff has not filed a response to this show cause order.
C. The Court should dismiss this matter for Plaintiff's failure to prosecute.
Plaintiff having failed to file a response to the pending dispositive motion (ECF No. 21), and Plaintiff further having failed to file a response to the Court's order requiring Plaintiff to show cause (ECF No. 23), the Court should dismiss this matter for Plaintiff's failure to prosecute. As the Sixth Circuit has explained:
In the context of dismissal pursuant to Rule 41(b) for failure to prosecute, we look to four factors for guidance: (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.Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999) (citing Stough v. Mayville Community Sch., 138 F.3d 612, 615 (6th Cir.1998)). Applying these factors to the case at bar:
1. It seems that Plaintiff's failure to file a response to the currently pending dispositive motion (ECF No. 21), and his failure to file a response to the show cause order (see ECF No. 23) are the result of willfulness, bad faith or fault. If Plaintiff is not receiving the Court's orders mailed to his address of record, it is upon him to keep the Court apprised of any change in address, as he was warned at the outset of this case (see ECF No. 5). See also E.D. Mich. LR 11.2 (“Failure to Provide Notification of Change of Address”).
2. Taking into consideration that Plaintiff's most recent filing occurred in May 2024 (see ECF No. 12), and the Court has twice imposed deadlines on Plaintiff which he has failed to meet (ECF Nos. 22, 23), Defendants are prejudiced by having to spend any further time and money - i.e., beyond that associated with the pending dispositive motion - on a case that Plaintiff appears to have abandoned.
3. The Court's show cause order warned Plaintiff that failure to comply with the order “ shall result in a Report and Recommendation that the Court dismiss this action pursuant to Federal Rule of Civil Procedure 41(b) and E.D. Mich. LR 41.2[,]” (ECF No. 23, PageID.126).
4. As for whether less drastic sanctions were imposed or considered, it appears that any such effort would be fruitless, given the multiple Court orders (ECF Nos. 22, 23) to or with which Plaintiff has failed to respond or comply.
Each of the factors weighs against Plaintiff; therefore, the Court should
DISMISS this matter pursuant to Fed.R.Civ.P. 41(b) and DEEM MOOT the pending dispositive motion (ECF No. 21).
III. PROCEDURE ON OBJECTIONS
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, 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 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. 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,” 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.