Harris v. Wickersham

Filing 39

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)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION CHRISTOPHER HARRIS, II, Plaintiff, v Case No. 16-cv-10778 Honorable Thomas L. Ludington A. O. SANBORN, Magistrate Judge Patricia T. Morris Defendant. __________________________________________/ 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 prejudice. It is further ORDERED that Plaintiff Harris’s pending motions, ECF Nos. 27, 28, and 29, are DENIED as moot. -2- 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 -3-

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