Opinion
2:22-12526
12-12-2024
BRANDON MONTEZ, Plaintiff, v. JAMES LOXTON, et al., Defendants.
District Judge Linda V. Parker
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION TO DISMISS THIS MATTER PURSUANT TO FED. R. CIV. P. 41(b) and DEEM MOOT THE TWO PENDING DISPOSITIVE MOTIONS (ECF No. 44 & 50)
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 two pending dispositive motions (ECF No. 44 & 50).
II. REPORT:
A. Background
Plaintiff Brandon Montez initiated this case in the Western District of Michigan against Corrections Officer James on October 5, 2022, and it was transferred to this district on October 20, 2022. (ECF No. 1.) In his complaint, Plaintiff alleged that he was sexually assaulted by two inmates at the Macomb Correctional Facility when Defendant James Loxton allegedly let the two inmates into Plaintiff's cell and locked them inside. (ECF No 1., PageID.7.) Judge Parker referred the case 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)” (ECF No. 16).
On March 20, 2024, Plaintiff filed a notice of change of address indicating that he had been released from incarceration and now resided at 62 S. Norwood Street, Hillsdale, Michigan. (ECF No. 47.) Since that time, all filings have been mailed to his address of record, and nothing has been returned to the Court as undelivered.
Plaintiff amended his complaint, adding additional Defendants. (ECF No. 28.) On March 4, 2024, Defendants Bruck and Hamameh filed a document (ECF No. 44), which the Court construed as a motion to dismiss the amended complaint and ordered that a response be filed by April 18, 2024 (ECF No. 46; see also 3/20/2024 Docket Entry, indicating service at new address of record.) On April 3, 2024, Defendants Quall and Stephguson filed a motion to dismiss. (ECF No. 50.) The Court ordered a response to the motion to dismiss to be filed by July 5, 2024 and sent the order to Plaintiff's address of record. (ECF No. 52.)
Under the local rules, a response to Defendants' two motions to dismiss were due within 21 days following service of the motions. E.D.Mich. LR 7.1(e)(2)(A). However, to avoid any ambiguity, I entered two orders, setting the two response deadlines as April 18, 2024 and July 5, 2024, respectively. (ECF Nos. 46, 52.) In both cases, I set the response deadlines one month from the date I entered the order, which effectively gave Plaintiff a total of six weeks to file a response to the first motion to dismiss and three months to file a response to the second motion to dismiss, well more than the 21 days allowed by local rule. After seven months had passed beyond the deadline for the first response and four months had passed beyond the deadline for the second response, Plaintiff still had not filed a response to either motion. I thus issued an order to show cause why the case should not be dismissed for lack of prosecution. (ECF No. 53.)
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. 53.) 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 Civil Procedure 41(b) and Eastern District of Michigan Local Rule 41.2 for his failure to comply with the Court's orders (ECF Nos. 46 & 52) 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 motions, 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.232-233 (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 motions (ECF Nos. 44 & 50), and Plaintiff further having failed to file a response to the Court's order requiring Plaintiff to show cause (ECF No. 53), 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 motions (ECF Nos. 44 & 50), and his
failure to file a response to the show cause order (see ECF No. 53) 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. 10). 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 March 2024 (see ECF No. 47), Defendants are prejudiced by having to spend any further time and money -i.e., beyond that associated with the pending dispositive motions - 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. 53, PageID.233).
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 (e.g., ECF Nos. 46, 52, 53) 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 motions (ECF Nos. 44 & 50).
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.