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2:11-cv-10032-DPH-MKM Doc # 30 Filed 07/31/13 Pg 1 of 4 Pg ID 140

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAMES BAGWELL,

Plaintiff,

v.

OAKLAND COUNTY SHERIFF’S OFFICE,

Defendants.

_______________________________________/

Case No. 11-CV-10032
Honorable Denise Page Hood

ORDER ADOPTING REPORT AND RECOMMENDATION GRANTING

DEFENDANT’S MOTION TO DISMISS, DISMISSING PLAINTIFF’S COMPLAINT

WITH PREJUDICE, AND DENYING AS MOOT PLAINTIFF’S MOTION FOR

SUMMARY JUDGMENT

This matter is before the Court on Magistrate Judge Mona K. Majzoub‘s Report and

Recommendation (R & R) dated June 20, 2013. The Magistrate Judge recommended that the Court

(1) grant Defendant’s Motion to Dismiss (Docket no. 26); (2) dismiss Plaintiff’s Complaint with

prejudice due to Plaintiff’s failure to prosecute the action; and (3) deny as moot Oakland County’s

Motion for Summary Judgment (Docket no. 27). After review, this Court ADOPTS the Magistrate

Judge’s recommendations.

I.

BACKGROUND

On January 4, 2011 Plaintiff filed a Complaint against the Oakland County Sheriff’s Office

due to alleged mistreatment he suffered while incarcerated in the Oakland County Jail. (Docket no.

1). In March 2011, Defendant filed a motion to dismiss on the ground that the Oakland County

Sheriff’s Office is not an entity subject to suit. (Docket. No. 16). The Court ordered Plaintiff to file

an amended complaint naming “Oakland County” as the proper Defendant. The Plaintiff failed to

amend and the Court construed the original complaint as filed against Oakland County and allowed

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the Plaintiff to proceed on Count Five of the original complaint. (Docket nos. 20-21). Oakland

County filed an answer denying count five on December 15, 2011. (Docket no. 22).

The Court then set deadlines for final witness lists and the discovery cutoff. (Docket no. 23).

On September 7, 2012, Defendant filed a motion to dismiss pursuant to Fed. R. Civ. P. 37(d) and

41(b), and a motion for summary judgment on September 26, 2012. (Docket no. 26, 27). Both

motions were a consequence of Plaintiff’s lack of action in response to court motions and orders.

On May 14, 2013, the Court ordered Plaintiff to show cause by May 29, 2013 indicating why his

complaint should not be dismissed for failure to prosecute under Fed. R. Civ. P. 37(d) and 41(b).

(Docket no. 28). Plaintiff was notified in the order that his complaint may be dismissed if he failed

to comply with the order. As of the date of the Magistrate Judge’s R & R, Plaintiff has not

responded to the show cause order.

II.

STANDARD OF REVIEW

This Court may accept, reject or modify, in whole or in part, the findings or

recommendations of the magistrate judge. The Court may also receive further evidence, or return

the matter to the magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3). If the Court accepts

an R&R, it is not required to state with specificity what it reviewed. United States v. Robinson, 366

F. Supp. 2d 498, 505 (E.D. Mich. 2005). It is sufficient for the Court to state that it engaged in a de

novo review of the record and adopted the R&R. Id. When there are no objections to the R&R, the

Court is required only to review the record for clear error prior to accepting the magistrate's

recommendation. Thomas v. Arn, 474 U.S. 140, 147 (1985) citing Fed. R. Civ. P. 72(b).

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III.

ANALYSIS

Rule 37(b) states that if a party fails to obey an order to provide or permit discovery, the

court may dismiss the action or proceeding. Fed. R. Civ. P. 37(b). Rule 37 (d) states that when a

party fails to attend its own deposition or serve answers to interrogatories, a court may sanction that

party by dismissing the action. Fed.R.Civ.P.37(d). In the instant case, the record shows no evidence

that the Plaintiff attempted to provide a witness list, comply with discovery deadlines, attend his own

deposition, or respond to Defendant’s discovery requests. The Plaintiffs failure to respond to the

above authorizes this Court to dismiss the action in whole or in part.

Additionally, Rule 41(b) states that if the Plaintiff fails to prosecute or comply with a court

order, a defendant may move to dismiss the action against it. A dismissal under this subsection of

the rule operates as an adjudication on the merits unless the dismissal order states otherwise. The

record shows no evidence that the Plaintiff followed this Court’s show cause order. When

contemplating dismissal under Rule 41(b), a court must consider: (1) whether the party's failure to

cooperate is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the

party’s lack of action; (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. Stough v. Mayville Cmty. Sch., 138 F3d 612, 615 (6th Cir. 1998).

Taking the Stough factors into consideration, the Court concludes that this action may be

dismissed. The Plaintiff has failed to communicate with this Court since his April 4, 2011 reply to

motion to dismiss. (Docket no. 17). The Plaintiff has not provided any evidence indicating why he

was unable to conduct discovery, obey court orders, or respond to motions since April 4, 2011. This

Court, therefore, concludes that the first Stough factor calls for dismissal because Plaintiff’s lack of

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communication is willful and in bad faith. The second Stough factor also suggests dismissal as the

Defendant’s ability to defend himself has been prejudiced by the Plaintiff’s failure to obey court

orders and respond to discovery requests. The third Stough factor calls for dismissal because the

show cause order gave the Plaintiff sufficient notice that his lack of attentiveness would lead to an

order dismissing the action. Finally, the fourth Stough factor suggests dismissal because despite the

Courts warning of possible dismissal, Plaintiff failed to respond. Given the Plaintiff’s failure to

adequately respond, less severe sanctions are not warranted.

IV.

CONCLUSION

Accordingly, IT IS SO ORDERED that the Report and Recommendations of Magistrate

Judge Mona K. Majzoub [Docket No. 29 filed on June 20, 2013] is ADOPTED as this Court’s

findings of fact and conclusions of law.

IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss pursuant to Fed. R. Civ.

P. 37(d) and 41(b) [Docket no. 26 filed on September 7, 2012] is GRANTED.

IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment [Docket No.

27, filed on September 26, 2012] is DENIED as moot.

S/Denise Page Hood
Denise Page Hood
United States District Judge

Dated: July 31, 2013

I hereby certify that a copy of the foregoing document was served upon counsel of record on July
31, 2013, by electronic and/or ordinary mail.

S/LaShawn R. Saulsberry
Case Manager

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