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
OAKLAND COUNTY SHERIFF’S OFFICE,
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
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
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
2:11-cv-10032-DPH-MKM Doc # 30 Filed 07/31/13 Pg 2 of 4 Pg ID 141
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.
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).
2:11-cv-10032-DPH-MKM Doc # 30 Filed 07/31/13 Pg 3 of 4 Pg ID 142
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
2:11-cv-10032-DPH-MKM Doc # 30 Filed 07/31/13 Pg 4 of 4 Pg ID 143
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.
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