Dudley El v. Michigan Department of Corrections et al

Filing 91

ORDER Adopting 89 Report and Recommendation; Dismissing John Doe Defendant; Denying 87 Request for 60-Day Extension and Dismissing Case with Prejudice. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DARRYL DUDLEY EL,

Case No. 14-11927
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

Plaintiff,
v.

U.S. MAGISTRATE JUDGE
STEPHANIE DAWKINS DAVIS

DONALD MAKOWSKI, ET AL.,
Defendants.
/

ORDER ADOPTING REPORT AND RECOMMENDATION [89]; DISMISSING JOHN DOE
DEFENDANT; DENYING REQUEST FOR 60-DAY EXTENSION TO FILE A RESPONSE
[87]; AND DISMISSING CASE WITH PREJUDICE
Plaintiff Darryl Dudley El, a pro se prisoner, brought claims against the
Michigan Department of Corrections (“MDOC”), MDOC officials, and the Michigan
Department of State Police, alleging violations of his 5th, 6th, 8th, and 14th
Amendment rights, pursuant to 42 U.S.C. § 1983. At this time, an unnamed “John
Doe” is the only remaining defendant1 in this case.
On August 11, 2017, the Magistrate Judge issued a Report and
Recommendation (R&R) [Dkt. #89] advising the Court to dismiss the John Doe
defendant and terminate as moot Plaintiff’s Request for 60-Day Extension to File a
Response [87]. Plaintiff filed an Objection [90] on August 25, 2017.

1

The Magistrate Judge treats the John Doe defendant as one individual. However,
according to Plaintiff, there are 14 “John Doe persons,” all of whom are Michigan State
troopers. See Obj. at 3.

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PROCEDURAL BACKGROUND
Plaintiff filed this lawsuit on May 8, 2014, over three years ago. On June 28,
2017, the Magistrate Judge ordered Plaintiff to provide the name and address of the
John Doe defendant so that the U.S. Marshal could effectuate service. Plaintiff failed
to comply with the Magistrate Judge’s Order [83] by the July 11, 2017 deadline.
On July 12, 2017, the Magistrate Judge issued an Order to Show Cause [86]
directing Plaintiff to explain, in writing, why this matter should not be dismissed
pursuant to Fed. R. Civ. P. 4(m) for failure to provide the correct name and address so
that service could be timely effectuated. The Magistrate Judge warned Plaintiff that
Failure to satisfactorily or timely comply with this order will result in a
recommendation that the action against defendant “Fourteenth John Doe
Persons” should be dismissed pursuant to Federal Rule of Civil Procedure 4(m)
and Local Rule 41.2.
(Dkt. 86 at 1-2).
Plaintiff’s response to the show cause order was due on July 19, 2017. Rather
than filing a response, Plaintiff requested a 60-day extension of time to, in part,
respond to the show cause order and provide the Court with an address for the John
Doe defendant.
ANALYSIS
Plaintiff claims that he is doing everything in his power to identify “and bring
to justice” the John Doe defendants. Obj. at 3. Plaintiff also “disagree[s] with the

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substances that the Magistrate attaches to the facts.” Id. at 4, 5. Plaintiff claims that
the Magistrate Judge is biased and that she must be relieved from this case. Id. at 5.
Pursuant to Fed. R. Civ. P. 41(b), the Court has the power to sua sponte dismiss
a case for failure to prosecute or comply with a court order. Steward v. City of
Jackson, 8 Fed. Appx. 294, 296 (6th Cir. 2001). “The power to invoke this sanction is
necessary in order to prevent undue delays in the disposition of pending cases and to
avoid congestion in the calendars of the District Courts.” Link v. Wabash R.R. Co.,
370 U.S. 626, 629-30 (1962). The Court “can dismiss an action for noncompliance . . .
if the behavior of the noncomplying party rises to the level of a failure to prosecute
under Rule 41(b) of the Federal Rules of Civil Procedure.” Tetro v. Elliott Popham
Pontiac, Oldsmobile, Buick, and GMC Trucks, Inc., 173 F.3d 988, 992 (6th Cir.
1999). The Sixth Circuit considers the following factors in reviewing a district court’s
decision to dismiss a case for failure to prosecute or comply with a court order:
(1) whether the party’s failure is due to wilfulness, bad faith, or fault; (2)
whether the adversary was prejudiced by the dismissed party’s conduct; (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.
Tung-Hsiung Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005).
The Magistrate Judge found that all four factors weighed against Plaintiff,
explaining:
First, fault lies with the plaintiff for his failure to identify and cause proper
service on the John Doe defendant. This matter has been pending more than
three years and no attempts to identify, name, or serve the John Doe defendant

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have been made . . . it is not altogether inaccurate to characterize plaintiff’s
inaction to be in reckless disregard of its effect on these proceedings –
including decreasing judicial economy. Second, even if the John Doe defendant
were to be identified at this point, the three-year lapse of time since the filing of
this matter and an even longer period since the underlying facts at issue arose,
has likely adversely impacted the quality of evidence available to the defense
due to diminished memories and lack of preservation of evidence potentially
necessary for a robust defense. Moreover, the likelihood of compromised
evidentiary value increases the risk of prejudice to the still-to-be-named
defendant . . . the court previously ruled that plaintiff’s claims against the
MDOC defendants were time-barred because the underlying actions giving rise
to the instant complaint occurred in October 1986, some 27 years before the
filing of plaintiff’s complaint. (Dkt. 59, 71). Inasmuch as plaintiff’s factual
averments as to all defendants pertain to that same time period, any claim
against a potential Doe defendant would very likely not survive a motion to
dismiss based on a statute of limitation grounds. Third, the Court warned
plaintiff multiple times in writing that dismissal in defendant’s favor would be
granted if he failed to file a response to the order to show cause or to provide
the Court with defendant’s full name and addresses. (Dkt. 83, 86). Finally, the
Court already utilized less drastic measures in an effort to coax plaintiff into
compliance when it issued plaintiff an extension of time to identify the John
Doe defendant, and subsequently issued a separate Order to Show Cause.
However, none of the Court’s efforts have been availing.
(R&R at 6-8).
Plaintiff claims that he has exercised his due diligence in attempting to identify
and serve the John Doe defendants. According to Plaintiff, he wrote to the Michigan
Attorney General’s Office requesting that “critically important documents” pertaining
to the 14 state troopers be disclosed.2 There is no information about when or to whom
Plaintiff submitted his request, nor does Plaintiff explain whether he received a
response to his request and what that response contained.
2

In his request for the extension, Plaintiff asked the Court to serve written deposition
questions on Mr. Allen J. Soros, counsel for former defendants William Bedell, Robert
Brown, Jr., and Kenneth Robinson. (Dkt. 87).

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Plaintiff has had ample time – more than three years – to ascertain the identities
of these John Doe defendants. Moreover, although pro se litigants are entitled to
leeway from the courts, such flexibility and “lenient treatment . . . has limits.” Pilgrim
v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996).
This is Plaintiff’s third request for an extension of time to respond. Plaintiff
requested, and was granted, a 30-day extension to respond to Defendants’ Motion to
Dismiss on February 8, 2016. In addition, the Magistrate Judge gave Defendant
multiple opportunities to provide the names and addresses of the John Doe
defendants. See Dkt. 83, 86. Notwithstanding the Magistrate Judge’s repeated
warnings, Plaintiff has failed to comply with the court’s orders. Under such
circumstances, the Court believes that dismissal is warranted pursuant to Fed. R. Civ.
P. 41(b).
To the extent that Plaintiff seeks recusal of the Magistrate Judge, the Court
finds that Plaintiff has forfeited whatever argument he intended to present for failure
to develop it. See, e.g., Hayward v. Cleveland Clinic Found., 759 F.3d 601, 618 n.9
(6th Cir. 2014) (citing McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir.
1997)). Plaintiff merely sets forth conclusory statements about the Magistrate Judge’s
“favor for law enforcement agents.” Obj. at 5. Plaintiff does not allege facts that
would indicate the Magistrate Judge’s bias or prejudice against him. See Reed-Bey v.
Pramstaller, No. 06-10934, 2011 WL 37964, at *2 (E.D. Mich. Jan. 5, 2011).

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CONCLUSION
The Court having reviewed the record, the Report and Recommendation [89] is
hereby ADOPTED and entered as the findings and conclusions of the Court.
Accordingly,
IT IS ORDERED that Defendant John Doe is DISMISSED.
IT IS FURTHER ORDERED that Plaintiff’s Request for 60-Day Extension
to File a Response [87] is DENIED.
IT IS FURTHER ORDERED that this case is DISMISSED WITH
PREJUDICE.
SO ORDERED.

Dated: September 28, 2017

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

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