Syzak v. Benson

Filing 49

OPINION and ORDER re 47 REPORT AND RECOMMENDATION re 43 MOTION to Dismiss - Signed by District Judge Nancy G. Edmunds. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SCOTT SYZAK,
Case No. 15-10928
Plaintiff,
Honorable Nancy G. Edmunds
v.
ANNA BENSON,
Defendant.
/

ORDER AND OPINION ACCEPTING THE MAGISTRATE JUDGE’S MAY 25, 2018
REPORT AND RECOMMENDATION [47]
Currently before the Court is the magistrate judge’s May 25, 2018 report and
recommendation. (Dkt. # 47). On June 15, 2018, Plaintiff filed an objection to the
magistrate judge's report. (Dkt. # 48). Having conducted a de novo review of the parts of
the Magistrate Judge's report to which specific objections have been filed, the Court
DENIES Plaintiff's objection and ACCEPTS AND ADOPTS the magistrate judge's report
and recommendation.
As noted by the magistrate judge, the Court ordered Plaintiff to respond to
Defendant's motion to dismiss and warned that failure to do so could result in sanctions,
including granting all or part of the relief requested by the moving party. (Dkt. # 44).
Plaintiff failed to respond, and the Court ordered him to show cause why the Court should
not dismiss his complaint. (Dkt. # 46). The Court again warned that failure to respond to
the Order to Show Cause or file a response to Defendant's motion to dismiss would result
in a recommendation that the motion be granted or that the case be dismissed under Fed.

R. Civ. P. 41(b). Id. Plaintiff failed to respond to the Order to Show Cause and again failed
to respond to Defendant's motion to dismiss.

Accordingly, the magistrate judge

recommends dismissing this case with prejudice. (Dkt. # 47). This Court agrees with the
magistrate judge that the relevant factors weigh in favor of dismissing this case for failure
to prosecute. See id. at Pg ID 3-6; Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir.
2005); Labreck v. U.S. Dep't of Treasury, No. 11-10155, 2013 WL 511031, at *2 (E.D. Mich.
Jan. 25, 2013), adopted by No. 11-10155, 2013 WL 509964 (E.D. Mich. Feb. 12, 2013);
Croton v. Recker, No. 11-15433, 2012 WL 3888220, at *2 (E.D. Mich. Sept. 7, 2012); White
v. Bouchard, No. 05-73718, 2008 WL 2216281, at *5 (E.D. Mich. May 27, 2008). Indeed,
Plaintiff does not object to the magistrate judge's conclusion.
Rather, in his objection, Plaintiff merely asserts that he cannot prosecute this case or
respond to Defendant's motion to dismiss without assistance because he finds the issues
too complex, and that he has no money to hire a lawyer. However, as the magistrate judge
had already found in a previous order denying without prejudice Plaintiff's earlier motion to
appoint counsel, an order to which Plaintiff did not object to, it appears from reading the
complaint as well as Plaintiff's previous motions and his success in challenging a prior
report and recommendation, that the issues raised in Plaintiff's complaint are not of an
unduly complex nature, and that Plaintiff has an adequate understanding of the issues
involved in this case, is able to read and write in English, and has some familiarity with the
Federal Rules of Civil Procedure. The magistrate judge correctly noted that there is no
right to counsel in prisoner civil rights cases, and that the appointment of counsel in such
proceedings is justified only in exceptional circumstances. See Lavado v. Keohane, 992
F.2d 601, 606 (6th Cir. 1993). Plaintiff has pointed to no exceptional circumstance in this
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case, which involves one Defendant and straightforward factual allegations. See Dkt. # 1
(alleging that Defendant Food Service Director forced Plaintiff to have sex with her several
times while Plaintiff was employed in the kitchen at the Macomb Correctional Facility, that
Plaintiff contracted a sexually transmitted disease as a result, and that Defendant
threatened to falsely accuse him of rape).

Accordingly, this Court denies Plaintiff's

objection.
For the reasons set forth above, the Court DENIES Plaintiff's objection and ACCEPTS
AND ADOPTS the magistrate judge's report and recommendation. It is ordered that
Plaintiff's complaint is hereby DISMISSED with prejudice.

It is further ordered that

Defendant's motion to dismiss (Dkt. # 43) is hereby terminated as MOOT.
SO ORDERED.

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: June 19, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of record
on June 19, 2018, by electronic and/or ordinary mail.
s/Lisa Bartlett
Case Manager

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