James #252844 v. Jondreau et al

Filing 86

MEMORANDUM OPINION AND ORDER REJECTING REPORT AND RECOMMENDATION 82 as the opinion of the court, and directing the magistrate judge to convene the settlement and final pretrial conference forthwith, at which the appearance of incarcerated witnesses at trial shall be discussed, if the matter is to proceed to trial ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN N O R T H E R N DIVISION

O R L A N D O JAMES, P l a in tif f , F ile No. 2:07-cv-235 v. H O N . ROBERT HOLMES BELL U N K N O W N JONDREAU, et al., D e f e n d a n ts . / M E M O R A N D U M OPINION AND ORDER R E J E C T I N G THE REPORT AND RECOMMENDATION T h is is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983 by Plaintiff O rla n d o James. Before the Court is a Report and Recommendation ("R&R") issued by the U n ited States Magistrate Judge recommending that the Court dismiss this case for failure to p rose cu te pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. (Dkt. No. 82.) The basis for the recommendation of dismissal is Plaintiff's failure file a pretrial n a rra tiv e statement in accordance with the Court's Case Management Order. To date, P la in tif f has not filed a pretrial narrative statement. Though he has not complied with the te rm s of the Case Management Order, the Court notes that Plaintiff filed a motion for e x te n sio n of time to comply with that order and that, since the R&R, Plaintiff has provided d e ta ils in a joint final pretrial order submitted together with Defendants. (Dkt. No. 83.) T h u s , it appears that Plaintiff maintains an interest in prosecuting this action. Considering

th e circumstances, including Plaintiff's position as a prisoner proceeding pro se in this m a tte r, the Court declines to hold that Plaintiff's conduct is contumacious or is indicative of a clear pattern of delay such that dismissal of his case is warranted. Cf. Jourdan v. Jabe, 951 F .2 d 108, 110 (6th Cir. 1991) (upholding dismissal where the prisoner failed to file requests fo r discovery despite two extensions of time and failed to file a pretrial statement). T h e re f o re , the Court will reject the R&R. The Magistrate Judge is directed to convene the s e ttle m e n t and final pretrial conference forthwith, at which the appearance of incarcerated w itn e ss e s at trial shall be discussed, if the matter is to proceed to trial. A c c o r d i n g l y, I T IS HEREBY ORDERED that the R&R (Dkt. No. 82) is REJECTED as the o p in io n of the Court.

Dated: March 10, 2010

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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