Short v. Kelly et al

Filing 50

ORDER (1) Adopting 48 Report and Recommendation, (2) Dismissing Plaintiff's 1 Complaint With Prejudice, and (3) Terminating Defendant's 36 Motion for Summary Judgment as Moot. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RICHARD SHORT,
Plaintiff,

Case No. 13-cv-13246
Hon. Matthew F. Leitman

v.
JOHN KELLY,
Defendant.
__________________________________________________________________/
ORDER (1) ADOPTING REPORT AND RECOMMENDATION (ECF #48),
(2) DISMISSING PLAINTIFF’S COMPLAINT (ECF #1) WITH
PREJUDICE, AND (3) TERMINATING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT (ECF #36) AS MOOT
On November 19, 2015, Magistrate Judge David R. Grand issued a Report
and Recommendation (the “R&R”) recommending that the Court dismiss Plaintiff
Richard Short’s (“Short”) Complaint. (See R&R, ECF #48.) The Magistrate Judge
explained in the R&R that he had provided Short multiple opportunities to respond
to a summary judgment motion filed by Defendant John Kelly (“Kelly”) on March
20, 2015, but that Short had failed to file any response. (See id. at 1, Pg. ID 357.)
For example, on October 5, 2015, the Magistrate Judge issued a show cause order
warning Short that if he did not respond to that order, or file a response to Kelly’s
summary judgment motion, by November 5, 2015, his case could be dismissed (the
“Show Cause Order”). (See ECF #46 at 1-2, Pg. ID 353-354.) Short never

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responded to the Show Cause Order, and has still not responded to Kelly’s
summary judgment motion. The Magistrate Judge thus recommended that the
Court dismiss Short’s Complaint pursuant to Federal Rule of Civil Procedure 41(b)
for want of prosecution.1 (See R&R at 2-3, Pg. ID 358-359.) The R&R stated that
the parties could object to and seek review of the recommendation within fourteen
days. (See id. at 3-4, Pg. ID 359-360.)
Short has failed to file any objections to the R&R.2

Failure to file

objections to the R&R waives any further right to appeal. See Howard v. Sec'y of
Health and Human Servs., 932 F.2d 505 (6th Cir. 1991); Smith v. Detroit Fed'n of
Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Likewise, the failure to
object to the Magistrate Judge’s R&R releases the Court from its duty to

1

Among other things, Rule 41(b) authorizes a Court to dismiss a case if “the
plaintiff fails to prosecute or [fails] to comply with these rules or a court order….”
Fed. Rule Civ. Proc. 41(b).
2

It appears that Short may not have received a copy of the Show Cause Order or
the R&R. The Court sent copies of both the Show Cause Order and the R&R to
the address Short provided the Court, but the documents were returned to the Court
as undeliverable. (See ECF ## 47, 49.) As the Magistrate Judge correctly
explained in the R&R, under this Court’s Local Rules, it is Short’s responsibility to
provide the Court correct and up-to-date contact information, and Short has failed
to do so. (See R&R at 2, Pg. ID 358; see also E.D. Mich. Local Rule 11.2.) Thus,
for the reasons stated in the R&R, the fact that the Show Cause Order and the R&R
were returned to the Court as undeliverable does not excuse Short’s failure to
respond. 

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independently review the matter. See Thomas v. Arn, 474 U.S. 140, 149 (1985).
The Court has nevertheless reviewed the R&R and agrees with the findings and
conclusions of the Magistrate Judge.
Therefore, IT IS HEREBY ORDERED that the Magistrate Judge's
November 19, 2015, Report and Recommendation (ECF #48) is ADOPTED as the
Opinion of this Court. IT IS FURTHER ORDERED, for the reasons stated in the
R&R, that Short’s Complaint (ECF #1) is DISMISSED WITH PREJUDICE. IT
IS FURTHER ORDERED that Kelly’s motion for summary judgment (ECF #36)
is TERMINATED AS MOOT.

Dated: December 28, 2015

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on December 28, 2015, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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