Black v. Bouchard et al
Filing
38
ORDER Accepting In Part And Rejecting In Part The Recommendation Contained In The Magistrate Judge's Report And Recommendation Dated March 16, 2015 36 , (2) Dismissing Plaintiff's Complaint Without Prejudice 1 , And (3) Denying Defendants' Motions To Dismiss 21 , 27 And Motion To Compel 32 As Moot. Signed by District Judge Mark A. Goldsmith. (JCur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAMES BLACK, # 775188,
Plaintiff,
vs.
Case No. 14-CV-13581
HON. MARK A. GOLDSMITH
MICHAEL BOUCHARD,
et al.
Defendants.
____________________/
ORDER
(1) ACCEPTING IN PART AND REJECTING IN PART THE RECOMMENDATION
CONTAINED IN THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
DATED MARCH 16, 2015 (Dkt. 36), (2) DISMISSING PLAINTIFF’S COMPLAINT
WITHOUT PREJUDICE, AND (3) DENYING DEFENDANTS’ MOTIONS TO DISMISS
(Dkts. 21, 27) and MOTION TO COMPEL (Dkt. 32) AS MOOT
This matter is presently before the Court on the Report and Recommendation (R&R) of
Magistrate Judge David R. Grand, issued on March 16, 2015 (Dkt. 36). In the R&R, the
Magistrate Judge recommends that the Court dismiss Plaintiff’s Complaint with prejudice in
light of Plaintiff’s failure to (i) respond to the pending dispositive motions and show cause order,
and (ii) provide an updated address at which documents may be sent.
The parties have not filed objections to the R&R, and the time to do so has expired. See
Fed. R. Civ. P. 72(b)(2). The failure to file a timely objection to an R&R constitutes a waiver of
the right to further judicial review. See Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not
appear that Congress intended to require district court review of a magistrate’s factual or legal
conclusions, under a de novo or any other standard, when neither party objects to those
findings.”); Smith v. Detroit Fed’n of Teachers, 829 F.2d 1370, 1373-1374 (6th Cir. 1987)
(failure to file objection to R&R “waived subsequent review of the matter”); Cephas v. Nash,
328 F.3d 98, 108 (2d Cir. 2003) (“As a rule, a party’s failure to object to any purported error or
omission in a magistrate judge’s report waives further judicial review of the point.”); Lardie v.
Birkett, 221 F. Supp. 2d 806, 807 (E.D. Mich. 2002) (“As to the parts of the report and
recommendation to which no party has objected, the Court need not conduct a review by any
standard.”). However, there is some authority that a district court is required to review the R&R
for clear error. See Fed. R. Civ. P. 72 Advisory Committee Note Subdivision (b) (“When no
timely objection is filed, the court need only satisfy itself that there is no clear error on the face
of the record in order to accept the recommendation.”). Therefore, the Court has reviewed the
R&R for clear error. On the face of the record, the Court finds no clear error for the Magistrate
Judge’s conclusion that dismissal is appropriate given Plaintiff’s failure to respond and to
provide the Court with an up-to-date address.
Accordingly, the Court accepts the
recommendation in part.
However, the Court concludes that dismissal without prejudice, rather than with
prejudice, is appropriate. See Muncy v. G.C.R., Inc., 110 Fed. App’x 552, 556 (6th Cir. 2004)
(“[T]he sanction of dismissal without prejudice is a comparatively lenient sanction . . . because
the dismissed party is ultimately not irrevocably deprived of his day in court.” (emphasis
removed)); Carpenter v. City of Flint, 723 F.3d 700, 709 (6th Cir. 2013) (holding that lesser
sanctions can include “levying a fine, barring counsel from participating in oral argument, or any
other disciplinary action, even dismissal without prejudice” (brackets, quotation marks, and
citation omitted)). This is particularly true given that Plaintiff’s failure to respond may be due to
Plaintiff’s failure to provide the Court with an updated address —which would be consistent with
the fact that nearly all of the recent filings — including the show cause order and the R&R —
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have been returned as undeliverable. See Labreck v. Stephenson, No. 14-cv-12025, 2014 WL
7273586, at *1-2 (E.D. Mich. Dec. 18, 2014) (dismissing case without prejudice due to
plaintiff’s failure to provide an up-to-date address to the court); Sango v. Johnson, No. 13-cv12808, 2013 WL 4614257, at *1-2 (E.D. Mich. Aug. 29, 2013) (same); Brown v. White, No. 09cv-12902, 2010 WL 1780954, at *1 (E.D. Mich. Apr. 30, 2010) (same); see also E.D. Mich. LR
11.2 (warning that failure to keep the Court informed of address changes may result in
dismissal); Notice Regarding Parties’ Responsibility to Notify Court of Address Changes (Dkt.
3) (same).
Accordingly, the Court accepts in part and rejects in part the R&R (Dkt. 36). The Court
dismisses Plaintiff’s Complaint without prejudice. The Court also denies Defendants’ motions to
dismiss (Dkts. 21, 27) and motion to compel (Dkt. 32) as moot. The Court will enter a judgment
in favor of Defendants contemporaneously with this decision.
SO ORDERED.
Dated: April 14, 2015
Detroit, Michigan
s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and
any unrepresented parties via the Court's ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on April 14, 2015.
s/Johnetta M. Curry-Williams
Case Manager
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