UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION BRIAN BONNER, Case No. 17-11571
Plaintiff, Robert H. Cleland v. United States District Judge
PRISON TRANSPORTATION SERVICES, Stephanie Dawkins Davis INC., and JOHN DOE, United States Magistrate Judge
Defendants. ________________________/
REPORT AND RECOMMENDATION: RULE 41(b) DISMISSAL & MOTION TO DISMISS (Dkt. 64) I. PROCEDURAL HISTORY Plaintiff Brian Bonner filed this pro se civil rights complaint on May 16, 2017. (Dkt. 1). On June 23, 2017, this case was referred to the undersigned by District Judge Robert H. Cleland for all pretrial purposes. (Dkt. 11). On April 26, 2019, defendant Prison Transportation Services filed a motion to dismiss. (Dkt. 64). On May 9, 2019, the Court ordered Bonner to respond to the motion to dismiss by June 10, 2019. (Dkt. 65). The Court warned that “Failure to file a response may result in sanctions, including granting all or part of the relief requested by the moving party.” (Id.) (emphasis in original). On the same day, the Court ordered Bonner to provide the correct names and addresses of defendants Prison Transportation Services Drivers 1 and 2 by June 10, 2019. (Dkt. 66). Having received no response to the motion to dismiss or the order to provide addresses, the Court ordered Bonner to show cause in writing by
August 5, 2019 why the undersigned should not recommend that his complaint be dismissed. (Dkt. 67, at p. 2). The Court warned that “Failure to timely or adequately respond in writing to this Order to Show Cause or timely file a
response to the motion and provide the correct names and addresses of defendant Drivers 1 and 2 will result in a recommendation that the motion be granted or that the entire matter be dismissed under Rule 41(b).” As of the date of this Report and Recommendation, plaintiff has not filed a
response to the order to show cause, nor has he provided a response to the motion to dismiss or provided addresses for the individual defendants. Consequently, for the reasons set forth below, the undersigned RECOMMENDS that plaintiff=s
complaint be DISMISSED with prejudice under Federal Rule of Civil Procedure 41(b). II. ANALYSIS AND CONCLUSIONS Under Federal Rules of Civil Procedure 41(b), a federal court may sua
sponte dismiss a claim for failure to prosecute or comply with an order. Link v. Wabash R.R. Co., 370 U.S. 626, 630-32 (1962); Steward v. City of Jackson, 8 Fed. Appx. 294, 296 (6th Cir. 2001). Indeed, the “authority of a federal trial court to
dismiss a plaintiff=s action with prejudice because of his failure to prosecute cannot seriously be doubted.” Link, 370 U.S. at 629. “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.” Link, 370 U.S. at 629-630. “[D]istrict courts possess broad discretion to sanction parties for failing to comply with procedural requirements.” Tetro v. Elliott Popham Pontiac,
Oldsmobile, Buick, and GMC Trucks, Inc., 173 F.3d 988, 991 (6th Cir. 1999), citing Carver v. Bunch, 946 F.2d 451, 453 (6th Cir. 1991). Further, “a district court can dismiss an action for noncompliance with a local rule ... if the behavior of the noncomplying party rises to the level of a failure to prosecute under Rule
41(b) of the Federal Rules of Civil Procedure.” Tetro, 173 F.3d at 992. The Sixth Circuit considers four factors in reviewing the decision of a district court to dismiss a case for failure to prosecute:
(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.
Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005) (citing Knoll v. American Tel. & Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999)). On balance, these factors weigh in favor of dismissal here. With respect to the first factor, similar to the facts in White v. Bouchard, 2008 WL 2216281, *5 (E.D. Mich. 2008), “it is not clear whether plaintiff’s failure to prosecute is due to willfulness, bad faith or fault.” Id. Regardless, “defendants cannot be expected to defend an action,” that
plaintiff has “apparently abandoned, not to mention the investment of time and resources expended to defend this case.” Id. For these reasons, the first and second factors weigh in favor of dismissal.
Moreover, based on the warning given to Bonner, the third factor also clearly weighs in favor of dismissal. This court has regularly dismissed cases under Rule 41(b) after a plaintiff has been warned of dismissal, failed to comply with court orders without explanation, and where defendants expended resources
on an abandoned action, and lesser sanctions would prove useless. See e.g., Croton v. Recker, 2012 WL 3888220, at *2 (E.D. Mich. Sept. 7, 2012). Additionally, a Rule 41(b) dismissal is an appropriate sanction for a pro se
litigant’s failure to provide the court with information regarding his current address. Watsy v. Richards, 1987 WL 37151 (6th Cir. 1987); White v. City of Grand Rapids, 34 Fed. Appx. 210, 211 (6th Cir. May 7, 2002) (finding that a pro se prisoner’s complaint “was subject to dismissal for want of prosecution because
he failed to keep the district court apprised of his current address”); Rogers v. Ryan, 2017 WL 5150884, at *2 (E.D. Mich. Nov. 7, 2017) (“A Rule 41(b) dismissal is an appropriate sanction for a pro se litigant's failure to provide the
court with information regarding his current address.”). Importantly, despite the court’s warning that his action may be dismissed, plaintiff failed to respond to the Court’s order to show cause. In the order to show
cause, the Court warned that “Failure to timely or adequately respond in writing to this Order to Show Cause or timely file a response to the motion and provide the correct names and addresses of defendant Drivers 1 and 2
will result in a recommendation that the motion be granted or that the entire matter be dismissed under Rule 41(b).” (Dkt. 67, at p. 2). Despite this clear warning, plaintiff has provided no good reason why the undersigned should not dismiss the complaint. See Labreck v. U.S. Dep t of Treasury, 2013 WL 511031,
at *2 (E.D. Mich. 2013) (recommending dismissal for plaintiff’s failure to comply with orders of the court), adopted by 2013 WL 509964 (E.D. Mich. 2013). And finally, given plaintiff=s failure to respond to the court’s order to show
cause, the undersigned sees no utility in considering or imposing lesser sanctions. Thus, taken together, these factors support dismissal for failure to prosecute. It is true that “district courts should be especially hesitant to dismiss for procedural deficiencies where, as here, the failure is by a pro se litigant.” White v. Bouchard,
2008 WL 2216281, at *5 (E.D. Mich. May 27, 2008) (quoting Lucas v.
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION BRIAN BONNER, Case No. 17-11571
Plaintiff, Robert H. Cleland v. United States District Judge
PRISON TRANSPORTATION SERVICES, Stephanie Dawkins Davis INC., and JOHN DOE, United States Magistrate Judge
Defendants. ________________________/
REPORT AND RECOMMENDATION: RULE 41(b) DISMISSAL & MOTION TO DISMISS (Dkt. 64) I. PROCEDURAL HISTORY Plaintiff Brian Bonner filed this pro se civil rights complaint on May 16, 2017. (Dkt. 1). On June 23, 2017, this case was referred to the undersigned by District Judge Robert H. Cleland for all pretrial purposes. (Dkt. 11). On April 26, 2019, defendant Prison Transportation Services filed a motion to dismiss. (Dkt. 64). On May 9, 2019, the Court ordered Bonner to respond to the motion to dismiss by June 10, 2019. (Dkt. 65). The Court warned that “Failure to file a response may result in sanctions, including granting all or part of the relief requested by the moving party.” (Id.) (emphasis in original). On the same day, the Court ordered Bonner to provide the correct names and addresses of defendants Prison Transportation Services Drivers 1 and 2 by June 10, 2019. (Dkt. 66). Having received no response to the motion to dismiss or the order to provide addresses, the Court ordered Bonner to show cause in writing by
August 5, 2019 why the undersigned should not recommend that his complaint be dismissed. (Dkt. 67, at p. 2). The Court warned that “Failure to timely or adequately respond in writing to this Order to Show Cause or timely file a
response to the motion and provide the correct names and addresses of defendant Drivers 1 and 2 will result in a recommendation that the motion be granted or that the entire matter be dismissed under Rule 41(b).” As of the date of this Report and Recommendation, plaintiff has not filed a
response to the order to show cause, nor has he provided a response to the motion to dismiss or provided addresses for the individual defendants. Consequently, for the reasons set forth below, the undersigned RECOMMENDS that plaintiff=s
complaint be DISMISSED with prejudice under Federal Rule of Civil Procedure 41(b). II. ANALYSIS AND CONCLUSIONS Under Federal Rules of Civil Procedure 41(b), a federal court may sua
sponte dismiss a claim for failure to prosecute or comply with an order. Link v. Wabash R.R. Co., 370 U.S. 626, 630-32 (1962); Steward v. City of Jackson, 8 Fed. Appx. 294, 296 (6th Cir. 2001). Indeed, the “authority of a federal trial court to
dismiss a plaintiff=s action with prejudice because of his failure to prosecute cannot seriously be doubted.” Link, 370 U.S. at 629. “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.” Link, 370 U.S. at 629-630. “[D]istrict courts possess broad discretion to sanction parties for failing to comply with procedural requirements.” Tetro v. Elliott Popham Pontiac,
Oldsmobile, Buick, and GMC Trucks, Inc., 173 F.3d 988, 991 (6th Cir. 1999), citing Carver v. Bunch, 946 F.2d 451, 453 (6th Cir. 1991). Further, “a district court can dismiss an action for noncompliance with a local rule ... if the behavior of the noncomplying party rises to the level of a failure to prosecute under Rule
41(b) of the Federal Rules of Civil Procedure.” Tetro, 173 F.3d at 992. The Sixth Circuit considers four factors in reviewing the decision of a district court to dismiss a case for failure to prosecute:
(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.
Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005) (citing Knoll v. American Tel. & Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999)). On balance, these factors weigh in favor of dismissal here. With respect to the first factor, similar to the facts in White v. Bouchard, 2008 WL 2216281, *5 (E.D. Mich. 2008), “it is not clear whether plaintiff’s failure to prosecute is due to willfulness, bad faith or fault.” Id. Regardless, “defendants cannot be expected to defend an action,” that
plaintiff has “apparently abandoned, not to mention the investment of time and resources expended to defend this case.” Id. For these reasons, the first and second factors weigh in favor of dismissal.
Moreover, based on the warning given to Bonner, the third factor also clearly weighs in favor of dismissal. This court has regularly dismissed cases under Rule 41(b) after a plaintiff has been warned of dismissal, failed to comply with court orders without explanation, and where defendants expended resources
on an abandoned action, and lesser sanctions would prove useless. See e.g., Croton v. Recker, 2012 WL 3888220, at *2 (E.D. Mich. Sept. 7, 2012). Additionally, a Rule 41(b) dismissal is an appropriate sanction for a pro se
litigant’s failure to provide the court with information regarding his current address. Watsy v. Richards, 1987 WL 37151 (6th Cir. 1987); White v. City of Grand Rapids, 34 Fed. Appx. 210, 211 (6th Cir. May 7, 2002) (finding that a pro se prisoner’s complaint “was subject to dismissal for want of prosecution because
he failed to keep the district court apprised of his current address”); Rogers v. Ryan, 2017 WL 5150884, at *2 (E.D. Mich. Nov. 7, 2017) (“A Rule 41(b) dismissal is an appropriate sanction for a pro se litigant's failure to provide the
court with information regarding his current address.”). Importantly, despite the court’s warning that his action may be dismissed, plaintiff failed to respond to the Court’s order to show cause. In the order to show
cause, the Court warned that “Failure to timely or adequately respond in writing to this Order to Show Cause or timely file a response to the motion and provide the correct names and addresses of defendant Drivers 1 and 2
will result in a recommendation that the motion be granted or that the entire matter be dismissed under Rule 41(b).” (Dkt. 67, at p. 2). Despite this clear warning, plaintiff has provided no good reason why the undersigned should not dismiss the complaint. See Labreck v. U.S. Dep t of Treasury, 2013 WL 511031,
at *2 (E.D. Mich. 2013) (recommending dismissal for plaintiff’s failure to comply with orders of the court), adopted by 2013 WL 509964 (E.D. Mich. 2013). And finally, given plaintiff=s failure to respond to the court’s order to show
cause, the undersigned sees no utility in considering or imposing lesser sanctions. Thus, taken together, these factors support dismissal for failure to prosecute. It is true that “district courts should be especially hesitant to dismiss for procedural deficiencies where, as here, the failure is by a pro se litigant.” White v. Bouchard,
2008 WL 2216281, at *5 (E.D. Mich. May 27, 2008) (quoting Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)). However, “dismissal is appropriate when a pro se litigant has engaged in a clear pattern of delay.” Jourdan v. Jabe, 951 F.2d 108,
110 (6th Cir. 1991). Indeed, a sua sponte dismissal may be justified by a plaintiff=s “apparent abandonment of [a] case.” White, 2008 WL 2216281, at *5 (citing Washington v. Walker, 734 F.2d 1237, 1240 (7th Cir. 1984)); see also
Labreck 2013 WL 511031, at *2; McMillian v. Captain D=s, 2007 WL 2436668, at *2 (D.S.C. 2007) (dismissing motion to dismiss and to compel arbitration because of plaintiff’s failure to respond despite being advised of the applicable procedures
and possible consequences for failure to respond adequately). The undersigned concludes that, for the reasons discussed above, plaintiff has effectively abandoned his case by failing to respond to the motion to dismiss, for failing to provide corrects names and addresses for the individual defendants,
and for failing to comply with the show cause order of the Court. Under these circumstances, dismissal with prejudice is appropriate. III. RECOMMENDATION
For the reasons set forth above, the undersigned RECOMMENDS that plaintiff=s complaint be DISMISSED with prejudice under Federal Rule of Civil Procedure 41(b), and that defendant Prison Transportation Services’ motion to dismiss (Dkt. 64) be denied or terminated as MOOT.
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 (1985); Howard v. Sec y of Health and Human Servs., 932 F.2d 505 (6th Cir. 1981). 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 and 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,” “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), Local Rule 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.
Date: August 27, 2019 s/Stephanie Dawkins Davis Stephanie Dawkins Davis United States Magistrate Judge CERTIFICATE OF SERVICE
I certify that on August 27, 2019, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system, which will send electronic notification to all counsel of record, and I certify that I have mailed by United States Postal Service the foregoing pleading to the following non-ECF participant, at the following address: Brian Bonner, 420 W. Mount Hope, Lansing, MI 48911.
s/Tammy Hallwood Case Manager (810) 341-7887 tammy_hallwood@mied.uscourts.gov