Smith et al v. Niles, City of et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROCHELLE SMITH, et al.,
Plaintiffs, 	Hon. Robert J. Jonker
v. 	Case No. 1:24-cv-00902
CITY OF NILES, et al.,
Defendants.
____________________________________/
REPORT AND RECOMMENDATION
Plaintiffs Smith and Miller brings this pro se action alleging that Defendants
violated their due-process rights, bringing a claim under 42 U.S.C. § 1983. (ECF No.
1). Pursuant to 28 U.S.C. § 636(b)(1)(B), the undersigned recommends that this matter
be dismissed without prejudice for want of prosecution.
ANALYSIS
Plaintiffs initiated this action on September 3, 2024. (ECF No. 1). In their
complaint, Plaintiffs listed unknown parties as Defendants. (ECF No. 1, PageID.1).
At this juncture the only remaining Defendants are the unknown parties. (ECF Nos.
39, 91, 93, and 100). On May 18, 2026, the undersigned issued an Order to Show Cause,
requiring Plaintiffs to explain why the claims against the unknown parties should not
be dismissed. (ECF No. 104, PageID.670). In the Order, the Court expressly warned
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Plaintiffs that failure to timely comply with the Order may result in the dismissal of the
lawsuit for want of prosecution. (ECF No. 104, PageID.670-71). On May 18, 2026, and
June 2, 2026, two court documents were returned as “Not Deliverable as Addressed” to
Plaintiff Miller with no action taken by the Clerk’s Office as Plaintiff Miller’s current
address was unknown. (ECF Nos. 103 and 105). Neither Plaintiff responded to the
Court’s Show Cause Order.
An unidentified defendant listed in a complaint is not a party to a lawsuit.
Rather, these “Doe defendants are routinely used as stand-ins for real parties until
discovery permits the intended defendants to be installed.” Hindes v. FDIC, 137 F.3d
148, 155 (3rd Cir. 1998) (internal quotation and citation omitted). The failure to
identify and serve a Doe defendant constitutes failure to prosecute and warrants
dismissal of that defendant. See Saucier v. Camp Brighton Prison, No. 13-15077, 2016
WL 11468926 at *3 (April 26, 2016), R&R adopted, 2016 WL 3251761 (E.D. Mich. June
14, 2016). Here, Plaintiffs did not identify or serve the unknown Defendants. Plaintiff
cannot maintain a lawsuit against the unserved, unidentified “unknown parties,” and
this Court should DISMISS without prejudice these Defendants.
Additionally, failure by a plaintiff to prosecute constitutes grounds to dismiss the
complaint, or any particular claims therein. See FED. R. CIV. P. 41(b). The Court may
also dismiss the complaint for want of prosecution if a plaintiff fails to keep the Court
apprised of their current address. W.D. MICH. LCIVR 41.1 (“Failure of a plaintiff to keep
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the court apprised of a current address shall be grounds for dismissal for want of
prosecution.”).
When examining whether dismissal for failure to prosecute is appropriate, the
Court must consider the following factors: (1) whether the party’s failure to cooperate is
due to willfulness, bad faith, or fault; (2) whether the adversary is prejudiced by the
party’s dilatory 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. See Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, and GMC
Trucks, Inc., 173 F.3d 988, 992 (6th Cir. 1999).
Consideration of these factors leads the undersigned to recommend that Plaintiff’s
claims against the remaining unknown Defendants be DISMISSED without
prejudice. Plaintiff Miller failed to keep the Court apprised of his current address.
Plaintiff’s conduct unfairly prejudices Defendants’ ability to defend against Plaintiff’s
claims. Plaintiff was expressly warned that failure to comply with the Court’s Order
may result in dismissal of his claims. Finally, the undersigned finds that, under the
circumstances, a lesser sanction is insufficient.
CONCLUSION
For the reasons articulated herein, the undersigned recommends that Plaintiffs
Smith and Miller’s complaint be dismissed without prejudice and that this action be
terminated. For the same reasons the undersigned makes these recommendations,
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the undersigned finds that an appeal of such would be frivolous and not made in good
faith. Coppedge v. United States, 369 U.S. 438, 445 (1962).
OBJECTIONS to this Report and Recommendation must be filed with the Clerk
of Court within fourteen days of the date of service of this notice. 28 U.S.C.
§ 636(b)(1)(C). Failure to file objections within the specified time waives the right to
appeal the District Court’s order. See Thomas v. Arn, 474 U.S. 140 (1985); United
States v. Walters, 638 F.2d 947 (6th Cir.1981).
Respectfully submitted,
Date: June 15, 2026 	/s/ Phillip J. Green
PHILLIP J. GREEN
United States Magistrate Judge
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