Horacek v. Markwell
Filing
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OPINION AND ORDER DISMISSING PLAINTIFF'S COMPLAINT PURSUANT TO EASTERN DISTRICT OF MICHIGAN LOCAL RULES 11.2 AND 41.2 Signed by District Judge Linda V. Parker. (AFla)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DANIEL HORACEK,
Plaintiff,
Civil Case No. 22-10966
Honorable Linda V. Parker
v.
CHAPLAIN MARKWELL,
Defendants.
________________________________/
OPINION AND ORDER DISMISSING PLAINTIFF’S COMPLAINT
PURSUANT TO EASTERN DISTRICT OF MICHIGAN
LOCAL RULES 11.2 AND 41.2
On April 27, 2022, Plaintiff Daniel Horacek, a former Michigan Department
of Corrections prisoner, filed this lawsuit against Defendant Chaplain Markwell. 1
(ECF No. 1.) Mr. Horacek alleges that Chaplain Markwell violated his First
Amendment religious rights as protected under the United States Constitution. The
matter was stayed to pursue early mediation but, after mediation was unsuccessful,
the stay was lifted on November 22, 2022. (ECF No. 12.) Chaplain Markwell
subsequently waived service (ECF No. 14) and filed a jury demand on February 3,
According to MDOC’s Offender Tracking Information System, Mr. Horacek was
paroled on September 7, 2022. See https://mdocweb.state.mi.us/otis2/otis2.aspx.
He is currently listed as having absconded from probation. Id.
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2023 (ECF No. 16). He apparently waived the right to reply to Mr. Horacek’s
Complaint pursuant to 42 U.S.C. § 1997e(g)(1).
While Plaintiff sent the Court a notice reflecting changes in his address
twice in this litigation, mailings to the address he most recently provided have been
returned as undeliverable. (ECF Nos. 18, 20.) On July 11, 2023, the Court issued
an order requiring the parties to appear for a telephonic scheduling conference at
1:00 p.m. on July 28. (See ECF No. 19.) Plaintiff failed to appear at the
scheduling conference or otherwise contact the Court. Plaintiff has taken no action
in the litigation since the November 22 mediation conference.
Eastern District of Michigan Local Rule 11.2 sets forth the duty of “[e]very
attorney and every party not represented by an attorney” to “promptly” file and
serve a notice of a change in that individual’s contact information. The rule warns
that the failure to comply “may subject that person or party to appropriate
sanctions, which may include dismissal, default judgment, and costs.” E.D. Mich.
LR 11.2. Local Rule 41.2 similarly allows for dismissal of an action “after
reasonable notice or on application of a party” when a party has “taken no action
for a reasonable time.” E.D. Mich. LR. 41.2 (emphasis added). The Court cannot
reasonably notify a party before taking action under Local Rule 41.2 when the
party has failed to comply with Local Rule 11.2.
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The Sixth Circuit has identified four factors for a court to consider in
deciding whether to dismiss a case for failure to prosecute:
(1) whether the party’s failure is due to willfulness, 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.
Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005) (citing Knoll v.
American Tel. & Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999)). “Although typically
none of the factors is outcome dispositive, … a case is properly dismissed by the
district court where there is a clear record of delay or contumacious conduct.”
Shafer v. City of Defiance Police Dep’t, 529 F.3d 731, 737 (6th Cir. 2008) (quoting
Knoll, 176 F.3d at 363). Contumacious conduct is “behavior that is ‘perverse in
resisting authority’ and ‘stubbornly disobedient.’” Carpenter v. City of Flint, 723
F.3d 700, 704-05 (6th Cir. 2013) (quoting Schafer, 529 F.3d at 737) (additional
quotation marks and citation omitted). “The plaintiff’s conduct must display either
an intent to thwart judicial proceedings or a reckless disregard for the effect of
[her] conduct on those proceedings.” Id. at 705 (additional quotation marks and
citation omitted).
Here, the record demonstrates such delay. As detailed above, Plaintiff has
ignored these proceedings and the Court’s order to appear for a scheduling
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conference. By failing to apprise the Court of his current contact information
and/or respond to the Court’s order, Plaintiff has made it impossible to move this
litigation forward or for the Court to warn him that his failure to prosecute the
action will result in dismissal. It also leads the Court to find no utility in
considering or imposing lesser sanctions.
For these reasons, the Court finds it appropriate to dismiss Plaintiff’s
Complaint with prejudice pursuant to Eastern District of Michigan Local Rules
11.2 and 41.2.
SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: August 14, 2023
I hereby certify that a copy of the foregoing document was mailed to counsel
of record and/or pro se parties on this date, August 14, 2023, by electronic and/
or U.S. First Class mail.
s/Aaron Flanigan
Case Manager
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