Harris v. Wickersham
ORDER Adopting 37 Report and Recommendation, Denying 27 28 29 Motions as Moot, and Dismissing Case. Signed by District Judge Thomas L. Ludington. (Sian, M)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
CHRISTOPHER HARRIS, II,
Case No. 16-cv-10778
Honorable Thomas L. Ludington
A. O. SANBORN,
Magistrate Judge Patricia T. Morris
ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING CASE
At the time he filed his pro se complaint on March 1, 2016, Plaintiff Christopher Harris II
was a state court prisoner in the custody of the Macomb County Jail serving a term of postconviction confinement. See ECF No. 21.
In his original complaint Harris alleged that
Defendant Anthony Wickersham, the Macomb County Sherriff, violated his rights to due process
under the Fourteenth Amendment and his right to be free from cruel and unusual punishment
under the Eighth Amendment by limiting his access to the law library and to legal materials. See
Compl., ECF No. 1.
After Defendant Wickersham moved to dismiss Plaintiff’s complaint, Plaintiff filed four
motions for injunctive relief and a motion to amend his complaint. By an order dated August 30,
2016 Plaintiff was granted leave to amend his complaint to state (1) a § 1983 claim against
various deputies for limiting his access to the law library in violation his constitutional rights;
and (2) A § 1983 claim against various deputies, as well as against Sheriff Wickersham in his
official capacity, for excessive force in violation of the Eighth Amendment. See ECF No. 30.
Harris was directed to file his amended complaint on or before September 21, 2016. His requests
for injunctive relief were denied.
Plaintiff Harris did not file his amended complaint by the required date. Therefore, on
October 28, 2016 Magistrate Judge Patricia T. Morris ordered Plaintiff Harris to show cause as
to why the case should not be dismissed for failure to prosecute. See ECF No. 32. Harris was
served with the order at the address he provided the Court, however the mail was returned as
undeliverable. See ECF No. 35. Under Eastern District of Michigan Local Rule 11.2 Harris has
a responsibility to promptly notify the Court whenever his address changes. Harris was advised
of this rule upon the filing of his complaint. See ECF No. 3. Nonetheless, the magistrate judge
attempted to serve Harris at his new address and extended the time for him to respond to the
show cause order until November 28, 2016. See ECF No. 36.
After Plaintiff Harris failed to respond to the show cause order, the magistrate judge
issued a report and recommendation recommending that Harris’s complaint be dismissed with
prejudice for failure to prosecute. See ECF No. 37. Although the magistrate judge’s report
explicitly states that the parties could object to and seek review of the recommendation within
fourteen days of service of the report, Plaintiff Harris did not file any objections. The election
not to file objections to the Magistrate Judge’s report releases the Court from its duty to
independently review the record. Thomas v. Arn, 474 U.S. 140, 149 (1985). The failure to file
objections to the report and recommendation waives any further right to appeal.
Accordingly, it is ORDERED that the magistrate judge’s report and recommendation,
ECF No. 37, is ADOPTED.
It is further ORDERED that Plaintiff Harris’s complaint is DISMISSED with
It is further ORDERED that Plaintiff Harris’s pending motions, ECF Nos. 27, 28, and
29, are DENIED as moot.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: January 5, 2017
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on January 5, 2017.
s/Michael A. Sian
MICHAEL A. SIAN
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