REPORT AND RECOMMENDATION TO DISMISS PLAINTIFF'S COMPLAINT [1] AND DENY DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [13] AS MOOT

DAVID R. GRAND, Magistrate Judge.

I. FACTUAL AND PROCEDURAL HISTORY

This is a prisoner civil rights case filed by plaintiff Dustin Sheets ("Sheets") on March 28, 2014. [1]. In short, Sheets alleges that on September 22, 2011, while he was incarcerated at the Wayne County Jail (Dickerson Facility), he fell in the shower "suffering injury." [Id. at ¶ 11]. He alleges the he "repeatedly notified Defendants,1 who did nothing." [Id. at ¶ 12]. He claims that one week later he was sent for an x-ray, which revealed a broken hand that required surgery. Sheets claims that "Defendants denied [Sheets's] access to medical care," but as discussed in footnote 1, does not say exactly how or when any defendant engaged in any wrongdoing. The complaint contains claims against all defendants for violations of his Eighth and Fourteenth Amendment rights to the United States Constitution (Count I), a claim against Defendants Wayne County and Sheriff Napoleon that they failed to adequately train jail personnel and have a policy, custom and practice of failing to provide such training (Count II), a claim against all individual defendants that they failed "to provide him with appropriate and reasonable medical care" in violation of an unspecified constitutional right (Count III), and a state law claim of "gross negligence" for failing "to provide him with appropriate and reasonable medical care" (Count IV).2

On February 3, 2015, the case was referred to the undersigned for all pretrial matters pursuant to 28 U.S.C. §636. [14].3 On February 2, 2015, defendants Wayne County and Wayne County Sheriff Benny Napoleon (hereinafter collectively "defendants") filed a motion for summary judgment.4 [13]. By April 1, 2015, Sheets still had not responded to defendants' motion, and on that date this Court issued an order to show cause advising Sheets that his response to defendants' motion must be filed on or before April 20, 2015, or in the alternative, he would have to show cause as to why the Court should not recommend that his complaint be dismissed for failure to prosecute under Fed. R. Civ. P. 41(b). [15]. Sheets was specifically informed that, "[f]ailure to timely or adequately respond in writing to this order to show cause, or to timely file a response to defendants' motion, may result in a recommendation that defendants' motion be granted and/or that plaintiff's action be dismissed under Fed. R. Civ. P. 41(b)." [Id.] (Emphasis added). A review of the docket indicates that Sheets has neither responded in writing to the Court's April 1, 2015 order, nor filed a response to defendants' motion.5

II. ANALYSIS

A. Sheets's Complaint Against Defendants Wayne County and Sheriff Benny Napoleon Should be Dismissed Pursuant to Federal Rule of Civil Procedure 41(b)

Federal Rule of Civil Procedure 41 governs dismissals of actions. As to involuntary dismissals, Rule 41(b) provides:

Fed. R. Civ. P. 41(b). It is clear that, despite the somewhat permissive language of Rule 41(b), which contemplates a motion by a defendant, a federal court may sua sponte dismiss a claim for failure to prosecute or comply with an order. See Link v. Wabash R.R. Co., 370 U.S. 626, 630-32 (1962); Steward v. City of Jackson, 8 F. App'x 294, 296 (6th Cir. 2001). As the Link court explained, "[n]either the permissive language of [Rule 41(b)] B which merely authorizes a motion by the defendant B nor its policy requires us to conclude that it was the purpose of the Rule to abrogate the power of courts, acting on their own initiative, to clear their calendars of cases that have remained dormant because of the inaction or dilatoriness of the parties seeking relief." Id. at 630. "The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts." Id. at 629-30. In other words, "a district court can dismiss an action for noncompliance with a local rule . . . if the behavior of the noncomplying party rises to the level of a failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure." Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, and GMC Trucks, Inc., 173 F.3d 988, 992 (6th Cir. 1999) (citing Carver v. Bunch, 946 F.2d 451, 453 (6th Cir.1991)).

The Sixth Circuit considers four factors in reviewing the decision of a district court to dismiss a case for failure to prosecute:

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)). All of the factors favor dismissal here. The Court warned Sheets that his case would be dismissed if he failed to file a response to defendants' motion for summary judgment or respond to the Court's April 1, 2015 order. [15]. Yet Sheets still failed to respond, meaning that the first and third factors weigh in favor of dismissal.6 As to the second factor, defendants are prejudiced by having this action pending against them without it being advanced to a timely conclusion due to Sheet's apparent abandonment of his claims. Finally, given Sheet's failure to file a response as ordered,7 the Court sees no utility in considering or imposing a lesser sanction. Thus, all of the factors weigh in favor of dismissal for failure to prosecute.

Furthermore, while the Court is mindful of the fact that "district courts should be especially hesitant to dismiss for procedural deficiencies where, as here, the failure is by a pro se litigant," White v. Bouchard, 2008 U.S. Dist. LEXIS 41428, at *14 (E.D. Mich. May 27, 2008) (quoting Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)), dismissal is, nevertheless, "appropriate when a pro se litigant has engaged in a clear pattern of delay." Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991). Indeed, a sua sponte dismissal may be justified by a plaintiff=s "apparent abandonment of [a] case." White, 2008 U.S. Dist. LEXIS 41428, at *14 (citing Washington v. Walker, 734 F.2d 1237, 1240 (7th Cir. 1984)). Here, for the reasons discussed above, Sheets has "engaged in a clear pattern of delay" by failing to comply with an order of the Court and by failing to file papers necessary for the prosecution of his claims. Under these circumstances, Sheets's complaint should be dismissed as to defendants Wayne County and Sheriff Benny Napoleon. See Fed. R. Civ. P. 41(b).

B. Counts I and III of Plaintiff's Complaint Against the Non-Moving Defendants Should be Dismissed

The Court also recommends dismissing Counts I and III of Sheets's complaint against the non-moving defendants. First, as noted above, Sheets's complaint does not make any specific allegations as to any of these defendants, and is ripe for dismissal on that basis alone. See supra fn. 1. Moreover, both Counts I and III, which allege, generally, that the non-moving defendants violated Sheets's constitutional rights by either denying him "medical attention to a serious medical need in a reasonably foreseeable time" or failing "to provide [Sheets] with appropriate and reasonable medical care," sound in negligence, as Sheets admits he did receive treatment. These claims should be dismissed under 28 U.S.C. §1915A because they are not cognizable under section 1983.

The Eighth Amendment's Cruel and Unusual Punishment Clause prohibits conduct by prison officials that involves the "unnecessary and wanton infliction of pain" upon inmates. Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987) (internal citations omitted). "`Deliberate indifference' by prison officials to an inmate's serious medical needs constitutes `unnecessary and wanton infliction of pain' in violation of the Eighth Amendment's prohibition against cruel and unusual punishment." Miller v. Calhoun Cty., 408 F.3d 803, 812 (6th Cir. 2005) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The Sixth Circuit has succinctly explained the standards that a plaintiff must satisfy to state a claim for deliberate indifference to his serious medical needs:

Broyles v. Corr. Medical Servs., Inc., 478 F. App'x 971, 975 (6th Cir. 2012) (internal citations omitted). The requirement that the official subjectively perceived a risk of harm and then disregarded it is "meant to prevent the constitutionalization of medical malpractice claims; thus, a plaintiff alleging deliberate indifference must show more than negligence or the misdiagnosis of an ailment." Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001). The Comstock court further explained:

Id. (internal citations omitted).

Here, because Sheets's allegations in Counts I and III of his complaint sound in negligence, those claims should be dismissed as against all of the non-moving defendants.

III. RECOMMENDATION

Based on the foregoing, the Court RECOMMENDS that the remaining claims in Sheets' complaint [1] be DISMISSED. The Court also RECOMMENDS that Defendants Wayne County and Sheriff Benny Napoleon's motion for summary judgment [13] be DENIED as MOOT.