United States District Court, W.D. Tennessee, Western Division
ORDER ADOPTING REPORT AND RECOMMENDATION AND
DISMISSING CASE WITH PREJUDICE
T. FOWLKES, JR. UNITED STATES DISTRICT JUDGE
the Court is Defendants' Motion for Summary Judgment that
was filed on February 21, 2018. (ECF No. 34.) The motion was
referred to the assigned United States Magistrate Judge for
management of all pretrial matters pursuant to 28 U.S.C.
§ 636(b)(1)(A) and 28 U.S.C. §§ 636 (b)(1)(B)
& (C) and West Tenn. L.R. 4.1(b)(1). On April 26, 2018,
the Magistrate Judge issued a Report and Recommendation in
which she recommended that Plaintiff's Complaint be
dismissed pursuant to Fed.R.Civ.P. 41(b) for failure to
prosecute and that the Motion for Summary Judgment be denied
as Moot. (ECF No. 39). To date, Plaintiff has not filed any
objections to the Magistrate Judge's Report and
Recommendation. Accordingly, the Court adopts the Report and
Recommendation and orders the case Dismissed.
STANDARD OF REVIEW
passed 28 U.S.C. § 636(b) “to relieve some of the
burden on the federal courts by permitting the assignment of
certain district court duties to magistrates.” See
e.g. Baker v. Peterson, 67 Fed.Appx. 308, 311, 2003 WL
21321184 (6th Cir. 2003) and Fed.R.Civ.P. 72(a). When a
Magistrate Judge submits to a district judge proposed
findings of fact and recommendations, any party may serve and
file written objections to such proposed findings and
recommendations in accordance with the rules of court. 28
U.S.C. §§ 636(b)(1)(B)-(C). After reviewing the
evidence, the Court may accept, reject, or modify, in whole
or in part, any findings or recommendations made by a
Magistrate Judge. Id. A Court need not review any
portion of the recommendation to which a plaintiff does not
specifically object. Therefore, it may adopt the findings and
rulings of a Magistrate Judge to which a specific objection
is not filed. Thomas v. Arn, 474 U.S. 140, 149-52
(1985). As noted, Plaintiff has not filed any objections to
the Magistrate Judge's Report and Recommendation in this
se litigants . . . are not exempt from the requirements
of the Federal Rules of Civil Procedure.” Payne v.
Lucite International, No. 13-2948-STA-tmp, 2014 WL
2826343 at *4 (W.D. Tenn. June 23, 2014) (citing Wells v.
Brown, 891 F.2d 591, 594 (6th Cir. 1989), reh'g
denied, (Jan. 19. 1990)). In addition, Fed.R.Civ.P.
41(b) authorizes a district court to enter sua
sponte an order of dismissal. Steward v. City of
Jackson, Tenn., 8 Fed.Appx. 294, 296 (6th Cir. 2001).
(b) Involuntary Dismissal; Effect. If the
plaintiff fails to prosecute or to comply with these rules or
a court order, a defendant may move to dismiss the action or
any claim against it. Unless the dismissal order states
otherwise, a dismissal under this subdivision (b) and any
dismissal not under this rule - . . . operates as an
adjudication on the merits.
contemplating dismissal of an action under Rule 41(b), a
court must consider: (1) whether the party's failure to
cooperate is due to willfulness, bad faith, or fault; (2)
whether the adversary was prejudiced by the dilatory conduct
of the party; (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. Steward, 9 Fed.Appx. at 296.
8, 2017, Plaintiff initiated this action pro se in
which she raised various discrimination and retaliation
claims in violation of Title VII, 42 U.S.C. §§
2000e, et al, against her former employer Shelby
County Schools (“Virtual School”) and other
individually named parties. (ECF No. 1.) As noted above, the
Defendants filed a Motion for Summary Judgment on February
21, 2018. (ECF No. 34.) On April 3, 2018, the Magistrate
Judge issued an Order for Plaintiff to show cause within
fourteen (14) days why her case should not be dismissed for
failure to respond to the Defendants' Summary Judgment
motion pursuant to Fed.R.Civ.P. 56 and L.R. 56.1. (ECF No.
38.) The Show Cause Order further advised Plaintiff that a
failure to comply with the Show Cause order could result in
dismissal of her case for failure to prosecute the action.
(Id.) To date, the record reflects that Plaintiff
has not filed a response to the Defendants' Motion for
Summary Judgment or a timely response as directed to the
Magistrate Judge's Order to Show Cause.
further review of the Report and Recommendation, the
Magistrate Judge also referenced Plaintiff's failure to
respond to Defendants' discovery requests, to comply with
other Court orders which compelled her to respond to these
discovery requests, and to appear as scheduled before the
undersigned Court for a status conference. (ECF Nos. 29, 33,
35 & 37.) These failures completely justify the
Magistrate Judge's recommendation for sua sponte
dismissal of the action by the Court for failure to
prosecute. The Court has also granted Plaintiff extensions to
obtain counsel and extensions to the scheduling order
deadlines due to other personal difficulties. (ECF Nos. 19,
27, 30 & 31.) However, the Court is not authorized to
excuse a party, even one proceeding pro se, from
continued noncompliance with orders issued by the undersigned
Court or the Magistrate Judge. The time allowed for Plaintiff
to respond to the Order to Show Cause has long expired. The
Order to Show Cause, ECF No. 38, sufficiently warned
Plaintiff that her failure to respond could result in
dismissal her case. Wells, 891 F.2d at 594;
Steward, 9 F.Appx. at 296. Finally, Plaintiff did
not file any objections to the Magistrate Judge's Report
and Recommendation as required under 28 U.S.C.
the Court finds that the Magistrate Judge's Report and
Recommendation should be Adopted, the case is ordered
Dismissed sua sponte pursuant to Fed.R.Civ.P. 41(b).
and the Defendants' Motion for Summary Judgment, ECF No.
34, is Denied as moot.