Coleman v. City of Cleveland et al

Filing 62

Memorandum Opinion Adopting Report and Recommendation 53 (other related docs 54 , 56 , 58 ). The Magistrate's Report and Recommendation fully and correctly addresses all of the issues and factors relevant to the sanction of dismis sal with prejudice for failure to prosecute. Further, the Plaintiff's Motions to Strike the Report and Recommendation, for Removal of the Magistrate, and to Dismiss without prejudice are unwarranted and are denied. Similarly, Plaintiff's Motion for additional time to file objections is out of rule and is denied. This Court, therefore, ADOPTS the Magistrate's Report and Recommendation, with the clarification that Defendants and defense Counsel were not aware of any outstanding warrant for the arrest of Plaintiff at the time of the Show Cause Hearing. For the reasons stated above, Plaintiff'sMotions are hereby DENIED, and this action is DISMISSED WITH PREJUDICE. Judge Donald C. Nugent(C,KA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

KATHY WRAY COLEMAN,
Plaintiff,
v.
CITY OF CLEVELAND, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

CASE NO.: 1:10 CV 1321
JUDGE DONALD C. NUGENT
MEMORANDUM OPINION

This matter comes before the Court upon the Report and Recommendation of Magistrate
Judge Greg White. (ECF #53) In his Report and Recommendation Magistrate Judge White
recommends that this action be dismissed with prejudice pursuant to Fed. R. Civ. P. 41(b) for
failure to prosecute and failure to comply with court orders.
This is the second time that this Court has had to consider whether to dismiss Ms.
Coleman’s action for failure to prosecute. Ms. Coleman filed the instant action in May of 2010
in state court and it was removed to this Court on June 15, 2010. This Court dismissed the
action on August 6, 2010 for Plaintiff’s consistent failure to prosecute the case after Plaintiff
failed to appear for a status conference after having been notified personally. On appeal, the
Sixth Circuit determined that this Court had abused its discretion in dismissing Plaintiff’s
complaint with prejudice and remanded the action for further proceedings. After remand, the
action was referred to Magistrate Judge White for pretrial supervision. As set forth in detail in
Magistrate Judge White’s Report and Recommendation, Plaintiff, acting pro se, has continued
her former practices of ignoring Court orders and deadlines. Magistrate White notes that the
Plaintiff “has repeatedly and contumaciously” failed to attend hearings set by the Court,
including the Show Cause Hearing held on October 10, 2012, despite having been warned that

“[f]ailure to attend may result in sanctions which could include, in case of Plaintiff, dismissal of
this action with prejudice.” Magistrate Judge White carefully analyzed and reviewed the factors
set out by the Sixth Circuit in Wu v. T.W. Wang, Inc., 420 F.3d 643, 643 (6th Cir. 2005) relating
to when a case may be dismissed for failure to prosecute and determined that all four factors
were met in this instance. “Although none of the four factors is outcome dispositive, a case is
properly dismissed by the district court where there is a clear record of delay or contumacious
conduct.” Fharmacy Records v. Nassar, 379 Fed. Appx. 522, 524 (6th Cir. 2010) (citation
omitted.) “Contumacious” has been defined as “perverse in resisting authority” and “stubbornly
disobedient.” Schafer v. City of Defiance Police Dep’t, 529 F.3d 731, 737 (6th Cir. 2008).
The Plaintiff’s actions as set forth by Magistrate White in his Report and
Recommendation clearly indicate that her conduct was contumacious and willful. Further, the
record shows that Defendants have been prejudiced in that Plaintiff’s behavior has completely
stalled the action, causing the case to languish in the pre-discovery phase. Magistrate White
explains that the Court considered less drastic sanctions than dismissal with prejudice after
Plaintiff’s first and second unexcused absences, setting instead a Show Cause Hearing. Plaintiff
was repeatedly warned that her failure to attend court conferences and especially the Show
Cause Hearing could lead to dismissal of her action. Magistrate Judge White notes “[d]espite the
Court’s best efforts to move this case forward, all efforts have been completely thwarted by
Plaintiff’s dilatory tactics. The Court, therefore, harbors serious reservations whether Plaintiff
has any real desire to reach a stage where this action can be addressed on its merits. While the
Court has considered less drastic sanctions, the Court is left with no other viable remedy, as it
has been unsuccessful in compelling Plaintiff to prosecute her case.” (ECF #53 at 7)

2

On November 13, 2012, Plaintiff filed a Motion to Strike Magistrate’s Report and
Recommendation for Dismissal with Prejudice and in the Alternative Motion for Extension to
Secure Transcript to File Objections to Magistrate’s Report and Motion for Removal of
Magistrate and Renewed Motion to Dismiss without prejudice. (ECF #58).1 The largely
incoherent filing asserts that the Report and Recommendation should be stricken as false and
defamatory and because Magistrate White is prejudiced and biased. There is no support for any
of these allegations.
Further, Plaintiff’s alternative motion for an extension of time to file objections to the
Report and Recommendation is out of rule, as objections, or requests for extensions must be filed
within 14 days of service of the Report and Recommendation. Plaintiff offers no justification for
her failure to timely file a request for additional time or any reason to believe that additional time
would result in an actual filing with substantive merit.
Finally, Plaintiff asks that the dismissal be without prejudice as the case was prematurely
filed because the claims of malicious prosecution and abuse of process cannot accrue until the
criminal case that forms the basis of the claims is terminated. However, Plaintiff states that she
was acquitted of the of the criminal charges on May 9, 2009. Her lawsuit was filed after that
date, thus the claims have accrued.
Finally, Defendant Cuyahoga County Deputy Sheriff Mullen moves for Amendment of
the Report and Recommendation to make clear that there is not currently an outstanding warrant
for Plaintiff’s arrest. (ECF #54) Magistrate Judge White noted that Plaintiff previously indicated

1

This Court has reviewed de novo those portions of the Magistrate Judge’s Report and
Recommendation to which objections have been made. See Fed. R. Civ. P. 72(b).
3

that she was apprehensive about appearing in Court for fear of arrest and found that Plaintiff’s
fear of arrest, whether real or imagined, does not excuse her failure to prosecute this action or
her failure to comply with the Court’s orders. The apparent misunderstanding regarding whether
there was an active warrant for Plaintiff’s arrest in Cleveland Municipal Court at the time of the
Show Cause Hearing does not affect the analysis or outcome here.
The Magistrate’s Report and Recommendation fully and correctly addresses all of the
issues and factors relevant to the sanction of dismissal with prejudice for failure to prosecute.
Further, the Plaintiff’s Motions to Strike the Report and Recommendation, for Removal of the
Magistrate, and to Dismiss without prejudice are unwarranted and are denied. Similarly,
Plaintiff’s Motion for additional time to file objections is out of rule and is denied. This Court,
therefore, ADOPTS the Magistrate’s Report and Recommendation, with the clarification that
Defendants and defense Counsel were not aware of any outstanding warrant for the arrest of
Plaintiff at the time of the Show Cause Hearing. For the reasons stated above, Plaintiff’s
Motions (ECF #58) are hereby DENIED, and this action is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.

/s/Donald C. Nugent
DONALD C. NUGENT
United States District Judge
DATED: December 3, 2012

4