Opinion
4:21-CV-412
11-30-2023
WALLACE LEWIS, Petitioner, v. LaSHANN EPPINGER, Warden Respondent.
BRIDGET MEEHAN BRENNAN, JUDGE
REPORT AND RECOMMENDATION
Jennifer Dowdell Armstrong U.S. Magistrate Judge
I. INTRODUCTION
Petitioner Wallace Lewis filed his petition for a writ of habeas corpus under 28 U.S.C. § 2254 on February 22, 2021. (ECF No. 1.) Respondent filed a return of writ on June 28, 2021. (ECF No. 5.) On July 16, 2021, Mr. Lewis sought leave for an extension of time to file a traverse. (ECF No. 6.) The Court granted Mr. Lewis' motion and ordered that the deadline to file a traverse was September 28, 2021. (ECF No. 7.) Mr. Lewis, however, never filed a traverse.
Pursuant to Local Rule 72.2, U.S. District Court Judge Bridget Meehan Brennan referred this matter to me to prepare a report and recommendation on Mr. Lewis' Petition. (See ECF non-document entry dated September 2, 2022). On October 20, 2023, I advised Mr. Lewis in a minute order that he had not filed a traverse and provided him with a final deadline of November 18, 2023, to file a traverse should he wish to respond to the Warden's arguments. (Minute Order dated October 20, 2023.) I also advised Mr. Lewis that he had failed to keep the Court apprised of his current address and ordered him to file a notice of change of address with the Court by November 17, 2023. (Id.) Finally, I notified Mr. Lewis that “failure to do so may result in dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).” (Id.) To date, Mr. Lewis has failed to file a notice of change of address with the Court.
For the following reasons, I RECOMMEND that the Court DISMISS this action without prejudice for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. I also RECOMMEND that this action be stricken from the Court's active docket.
II. LAW AND ANALYSIS
“A federal trial court has authority to dismiss a case under Rule 41(b) of the Federal Rules of Civil Procedure because of a plaintiff's failure to prosecute his claims.” Lucas v. Farley, No. 0:22-CV-10-REW-CJS, 2022 WL 4126656, at *2 (E.D. Ky. Aug. 4, 2022). Specifically, Rule 41(b) provides:
(b) Involuntary Dismissal; Effect. 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); see also Link v. Wabash R.R. Co., 370 U.S. 626, 629-31 (U.S. 1962) (holding the language in Rule 41(b) allowing for a party to move to dismiss for failure to prosecute did not implicitly abrogate the court's power to dismiss sua sponte).
The U.S. Supreme Court has recognized that “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.” Id.; see also Carpenter v. City of Flint, 723 F.3d 700, 704 (6th Cir. 2013) (“It is well settled that a district court has the authority to dismiss sua sponte a lawsuit for failure to prosecute.”); Little v. Yeutter, 984 F.2d 160, 162 (6th Cir. 1993) (recognizing that “[u]nder the Federal Rules of Civil Procedure, Rule 41(b), the district court has the authority to dismiss a case for failure to prosecute,” and the appropriate standard of review is abuse of discretion); see also Palasty v. Hawk, 15 Fed.Appx. 197, 199 (6th Cir. 2001) (citation omitted) (noting that dismissal of claims for failure to prosecute was available to the district court as a tool to manage its docket and to avoid unnecessary burdens on the court and opposing parties, after certain plaintiffs failed to respond to a court order requiring filing status information).
In determining whether a case should be dismissed for failure to prosecute under Rule 41(b), the Sixth Circuit has held that a court should consider the following four factors:
(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.Rogers v. City of Warren, 302 Fed.Appx. 371, 376 (6th Cir. 2008) (quoting Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 589 (6th Cir. 2001)); Knoll, 176 F.3d at 363. As discussed below, a review of these factors leads to the conclusion that dismissal without prejudice is appropriate in this case.
A. Whether the party's failure is due to willfulness, bad faith, or fault
Mr. Lewis failed to comply with the Court's Order to file a notice of change of address. Thus, he appears to have abandoned his case because “[s]uch refusal evidences a willful disregard of the Court's instruction.” Lucas, 2022 WL 4126656, at *2. Courts within the Northern District of Ohio have similarly concluded that dismissal is warranted where a habeas petitioner fails to keep the court updated regarding his change in address. See Johnson v. Sloan, No. 1:17-cv-1050, 2017 WL 7736384, at *3 (N.D. Ohio Oct. 10, 2017) (Ruiz, M.J.) (holding dismissal without prejudice was warranted when the petitioner failed to update his address and the court's prior order warned the petitioner that failure to do so may result in dismissal); McClellan v. Mack, No. 3:11CV1798, 2012 WL 4461520, at *4 (N.D. Ohio Feb. 23, 2012) (Limbert, M.J.), report and recommendation adopted, 2012 WL 4461523 (N.D. Ohio Sept. 25, 2012) (Polster, J.); Alexander v. Bureau of Prisons, No. 4:08-CV-2296, 2011 WL 2112553 at *2 (N.D. Ohio May 27, 2011) (agreeing with the conclusions of the Magistrate Judge, which included a finding that the petitioner's failure to update his address constituted failure to prosecute and warranted dismissal without prejudice) (Gwin, J.); Amison v. Legg, No. 5:14cv987, 2015 WL 853526 (N.D. Ohio Feb. 26, 2015) (Lioi, J.) (adopting report and recommendation that a civil action be dismissed for failure to prosecute based in part on plaintiff's failure to notify the court of his current, valid mailing address).
Moreover, these Northern District of Ohio rulings are consistent with other courts that have dismissed or upheld the dismissal of a case for failure to prosecute when a pro se plaintiff fails to update the Court as to his address. Watsy v. Richards, 816 F.2d 683, 1987 WL 37151 (6th Cir. 1987) (affirming district court's dismissal of action under Rule 41(b) where the pro se plaintiff failed to update the district court as to his current address); Rogers v. Ryan, No. CV 16-12735, 2017 WL 5150884, at *2 (E.D. Mich. Nov. 7, 2017) (“A Rule 41(b) dismissal is an appropriate for a pro se litigan'ts failure to provide the court with information regarding his current address.”); Lucas, 2022 WL 4126656, at *2 (same). Accordingly, the first factor weighs in favor of dismissal here.
B. Whether the adversary was prejudiced by the dismissed party's conduct
In applying the second factor, courts have found that “[w]hile the prejudice to Defendants at this point may be minimal, they have expended time and funds in defending this action, including preparation of a responsive pleading.” See e.g., Lucas, 2022 WL 4126656, at *3 (citing White v. Bouchard, No. 05-73718, 2008 WL 2216281, at *5 (E.D. Mich. May 27, 2008) (“[D]efendants cannot be expected to defend an action which plaintiff has apparently abandoned, not to mention the investment of time and resources to defend this case.”). Even if clear prejudice was lacking, however, “the four factors set forth by the Sixth Circuit are indeed factors and not a checklist.” Johnson, 2017 WL 773684, at *3.
C. Whether the dismissed party was warned that failure to cooperate could lead to dismissal
Courts applying the third factor have recognized that it “involves an examination as to whether the non-complying party was warned that failure to cooperate could lead to dismissal.” Id. As in Johnson, this factor is unmistakably present here, as the court's order of October 20, 2023, explicitly warned Mr. Lewis that failure to file a notice of change of address with the Court “may result in dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).” See Lucas, 2022 WL 4126656, at *3 (finding that the petitioner was “warned that he must immediately advise the Clerk's Office of any change in his mailing address,” and that the result of failing to do so is that “the Court might rule against you on a motion or dismiss your case”); see also Austin v. Dennis, No. 0:13-cv-118-HRW, 2014 WL 6909659, at *3 (E.D. Ky. Dec. 8, 2014) (finding third factor met where the pro se plaintiff “was warned by the Court in its initial order that failure to keep the Court apprised of his location could result in dismissal of his case”); Rogers v. Ryan, No. CV 16-12735, 2017 WL 5150884, at *2 (E.D. Mich. Nov. 7, 2017) (holding dismissal was an appropriate sanction for a pro se litigant's failure to provide current address). Accordingly, this factor weighs in favor of dismissal here.
D. Whether less drastic sanctions were imposed or considered before dismissal was ordered
The fourth factor looks to whether less drastic sanctions were imposed or considered. As the Supreme Court recognized in Link, 370 U.S. at 629-30, “[t]he authority of a federal trial court to dismiss a plaintiff's action with prejudice because of his failure to prosecute cannot seriously be doubted.” Here, however, I am recommending dismissal without prejudice, which is a lesser sanction than is permitted under Rule 41(b). See Semtek Int'l, Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505 (2001) (“The primary meaning of ‘dismissal without prejudice,' we think, is dismissal without barring the plaintiff from returning later, to the same court, with the same underlying claim.”). Moreover, “no alternative sanction would protect the integrity of pre-trial procedures” because Mr. Lewis' actions have indicated that he does not intend to further participate in his case. Carter v. City of Memphis, Tenn., 636 F.2d 159, 161 (6th Cir. 1980). Accordingly, dismissal of this case without prejudice is warranted here.
III. RECOMMENDATION
For the reasons set forth above, I RECOMMEND that the Court DISMISS this action without prejudice for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. I also RECOMMEND that this action be stricken from the Court's active docket.
IV. NOTICE TO PARTIES REGARDING OBJECTIONS
Local Rule 72.3(b) of this Court provides:
Any party may object to a Magistrate Judge's proposed findings, recommendations or report made pursuant to Fed.R.Civ.P. 72(b) within fourteen (14) days after being served with a copy thereof, and failure to file timely objections within the fourteen (14) day period shall constitute a waiver of subsequent review, absent a showing of good cause for such failure. Such party shall file with the Clerk of Court, and serve on the Magistrate Judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations, or report to which objection is made and the basis for such objections. Any party may respond to another party's objections within fourteen (14) days after being served with a copy thereof. The District Judge to whom the case was assigned shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. The District Judge need conduct a new hearing only in such District Judge's discretion or where required by law, and may consider the record developed before the Magistrate Judge, making a determination on the basis of the record. The District Judge may also receive further evidence, recall witnesses or recommit the matter to the Magistrate Judge with instructions.Id. (emphasis added).
Failure to file objections within the specified time may result in the forfeiture or waiver of the right to raise the issue on appeal either to the district judge or in a subsequent appeal to the United States Court of Appeals, depending on how or whether the party responds to the report and recommendation. Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019). Objections must be specific and not merely indicate a general objection to the entirety of the report and recommendation; a general objection has the same effect as would a failure to object. Howard v. Sec'y of Health and Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991).
Stated differently, objections should focus on specific concerns and not merely restate the arguments in briefs submitted to the magistrate judge. “A reexamination of the exact same argument that was presented to the Magistrate Judge without specific objections ‘wastes judicial resources rather than saving them, and runs contrary to the purpose of the Magistrates Act.'” Overholt v. Green, No. 1:17-CV-00186, 2018 WL 3018175, *2 (W.D. Ky. June 15, 2018) (quoting Howard). The failure to assert specific objections may in rare cases be excused in the interest of justice. See United States v. Wandahsega, 924 F.3d 868, 878-79 (6th Cir. 2019).