Hines v. D&S Residential Services et al

Filing 31

ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING CASE 30 . Signed by Chief Judge J. Daniel Breen on 12/17/2015. (Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
DAVIS HINES,
Plaintiff,
v.

No. 14-1266

D&S RESIDENTIAL SERVICES,
D&S COMMUNITY SERVICES and
ANGELA STRAYHORN,
Defendants.
______________________________________________________________________________
ORDER ADOPTING REPORT AND RECOMMENDATION AND
DISMISSING CASE
______________________________________________________________________________
This action was brought on October 7, 2014, by the pro se Plaintiff, Davis Hines, against
the Defendants, D&S Residential Services, D&S Community Services and Angela Strayhorn,
alleging retaliation and employment discrimination on the bases of race and sex in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (D.E. 1.) In an order
docketed May 7, 2015, United States Magistrate Judge Edward G. Bryant directed Hines to
amend his complaint in order to sufficiently allege his retaliation claim. (D.E. 6.) The amended
pleading was filed on June 5, 2015. (D.E. 9.) On June 29, 2015, Judge Bryant entered a report
and recommendation in which he recommended to the undersigned that the discrimination claims
be dismissed and the retaliation claim be allowed to proceed. (D.E. 10.) There being no
objections thereto, this Court, in an order entered July 20, 2015, adopted the report and
recommendation, dismissed the discrimination claims and directed the Clerk of Court to issue
process on the remaining claim. (D.E. 11.)

Time passed, during which the parties participated in a scheduling conference with the
magistrate judge on September 17, 2015, and the Defendants moved on August 21, 2015, for
dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (D.E. 16) and to be
excused from mandatory alternative dispute resolution on October 1, 2015 (D.E. 26). The latter
motion was granted on October 2, 2015. (D.E. 27.) On September 22, 2015, the magistrate
judge granted the joint motion of the parties to set the deadline for Plaintiff's response to the
pending motion to dismiss at October 5, 2015. (D.E. 25.) When Hines failed to respond to the
dispositive motion, the magistrate judge, in an order entered October 27, 2015, directed him to
show cause within eleven days of the entry thereof why the Court should not impose sanctions,
which could include dismissal of the action, for failure to comply with the orders of the Court.
(D.E. 28.) The order specifically warned Hines that "[f]ailure to timely respond to this order
may result in sanctions, including dismissal of the instant lawsuit." (Id. at 1.) The Plaintiff did
not respond to the show cause order. Nor did he respond to the Rule 12(b)(6) motion. On
November 16, 2015, the Defendants moved for dismissal under Fed. R. Civ. P. 41(b) for failure
to prosecute.

(D.E. 29.)

Judge Bryant recommended on November 19, 2015, that the

Defendants' Rule 41(b) motion be granted. (D.E. 30.) Hines was advised that any objections to
the magistrate judge's report and recommendation must be filed within fourteen days after
service. The time for such objections has expired with no filing of any kind from the Plaintiff.
Rule 41(b) provides for dismissal of claims, on motion of the defendant, for failure of the
plaintiff “to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court order .
. .” Fed. R. Civ. P. 41(b). A district court may utilize the Rule “as a tool to effect management
of its docket and avoidance of unnecessary burdens on the tax-supported courts and opposing
parties.” Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999) (internal quotation

2 

marks omitted). The Sixth Circuit has articulated four factors to guide the district courts in
assessing whether dismissal for failure to prosecute is warranted:
(1) whether the party's failure to cooperate 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 in advance about the possibility of
dismissal for noncompliance or non-cooperation; and (4) whether less drastic
sanctions were imposed or contemplated before the order of dismissal.
Prime Finish, LLC v. ITW Deltar IPAC, 608 F. App'x 310, 313-14 (6th Cir. 2015) (citing Schafer
v. City of Defiance Police Dep't, 529 F.3d 731, 737 (6th Cir. 2008)); see Muncy v. G.C.R., Inc.,
110 F. App’x 552, 555 (6th Cir. 2004) (noting that the factors are “merely guideposts or points of
departure” rather than required elements). While a harsh sanction, dismissal is appropriate
where there is a “clear record of delay or contumacious conduct by the plaintiff," even where the
plaintiff is representing himself. Shavers v. Bergh, 516 F. App’x 568, 570 (6th Cir. 2013) (per
curiam); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991). “Contumacious” has been defined
as “perverse in resisting authority and stubbornly disobedient.”

Schafer, 529 F.3d at 737

(internal quotation marks omitted).
With respect to the first factor, “[w]illfulness, bad faith, or fault is demonstrated when a
plaintiff’s conduct evidences either an intent to thwart judicial proceedings or a reckless
disregard for the effect of his conduct on those proceedings.” Shavers, 516 F. App’x at 570
(quoting Schafer, 529 F.3d at 737) (internal quotation marks omitted). Willfulness and fault
have been found where the plaintiff’s conduct indicated “an intention to let his case lapse.” See
Schafer, 529 F.3d at 739. Hines was engaged in the proceedings at the beginning of this
litigation, appearing at a scheduling conference and participating in a motion with the
Defendants. Then, his pursuit of the case ended without explanation. While there is no evidence
to suggest Hines has acted in bad faith, he is clearly at fault, and acted willfully in drawing these

3 

proceedings to a halt. See id.; see also Ratfisch v. Bay Cty. Jail, Case No. 14-13722, 2015 WL
7292564, at *2 (E.D. Mich. Oct. 26, 2015) (where pro se plaintiff failed to timely respond to
defendant's motion to compel discovery and order to show cause, first factor weighed in favor of
dismissal), report & recommendation adopted, 2015 WL 7273222 (E.D. Mich. Nov. 18, 2015).
The first consideration supports dismissal.
“A defendant is prejudiced by the plaintiff’s conduct where the defendant wasted time,
money, and effort in pursuit of cooperation which the plaintiff was legally obligated to provide.”
Shavers, 516 F. App’x at 570. Where defendants necessarily expended time and resources in
defending the case, plaintiff’s conduct prejudiced their pursuit of the case to its resolution. Id.
Here, some motions have been filed by the Defendants; but it appears no significant, or perhaps
any, discovery had been taken or attempted. The litigation is in its early stages. This factor
weighs in favor of the Defendants, although perhaps not to any great extent.
The third factor, described as a “key consideration” in the dismissal analysis, Schafer,
529 F.3d at 740, 742, also favors the Defendants. Hines was undisputedly on notice from the
Court in its October 27, 2015, show cause order that his failure to respond could result in
dismissal of his lawsuit. His noncompliance with the order constitutes the contumacious conduct
required for dismissal. See Steward v. City of Jackson, Tenn., 8 F. App’x 294, 296 (6th Cir.
2001) (pro se plaintiff’s failure to comply with a court order after express warning that such
failure would result in dismissal qualified as contumacious conduct and justified dismissal).
As for the fourth consideration, dismissal is appropriate where the action “amounted to
failure to prosecute and no alternative sanction would protect the integrity of pre-trial
procedures.” Kemp v. Robinson, 262 F. App’x 687, 692 (6th Cir. 2007) (quoting Carter v. City
of Memphis, Tenn., 636 F.2d 159, 161 (6th Cir. 1980)). “[A] district court does not abuse its

4 

discretion by dismissing a case when other sanctions might be workable as long as dismissal is
supported by the facts.” Bullard v. Roadway Exp., 3 F. App’x 418, 421 (6th Cir. 2001) (per
curiam). Considering Hines' utter failure to continue to cooperate in this lawsuit, the Court
cannot conceive of a lesser sanction that would have any likelihood of convincing Plaintiff to
move this case forward, as he has apparently abandoned his cause of action. This factor also
falls onto the Defendants' side of the scale. See Ratfisch, 2015 WL 7292564, at *2 (because
plaintiff had apparently abandoned his case, the court "[saw] no utility in considering or
imposing lesser sanctions"; accordingly, fourth factor supported dismissal).
Based on the Court's finding that none of the considerations militate in favor of the
Plaintiff, the report and recommendation of the magistrate judge is ADOPTED and the case is
DISMISSED in its entirety1 The Clerk of Court is DIRECTED to enter judgment for the
Defendants.
IT IS SO ORDERED this 17th day of December 2015.
s/ J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE

1

The Court recognizes that the magistrate judge's November 19, 2015, report and
recommendation was entered only three days after the Defendants moved for dismissal for
failure to prosecute under Rule 41(b), without waiting the fourteen days provided for in the local
rules of this district for response to such a motion. However, despite his recommendation that
the Defendants' November 16, 2015, motion be granted, it is clear from a reading of the report
that the actual, and only, basis for the recommendation was Hines' failure to respond to the
August 21, 2015, motion for Rule 12(b)(6) dismissal and the October 27, 2015, order to show
cause. For the reasons explained herein, these failures on the part of the Plaintiff to pursue his
claims are sufficient to warrant dismissal without consideration of the November 16 motion to
dismiss, and the report and recommendation is adopted insofar as it recommends dismissal on
those bases. In any case, the Court notes that the time for filing a response to the November 16
motion to dismiss has also passed without a response from the Plaintiff.  

5