Todie v. Corrections Corporation of America et al

Filing 49

Memorandum Opinion: Plaintiff has utterly, and in every respect, failed to prosecute his claims and/or to defend against the motion to dismiss. There being no opposition to the defendants' motion to dismiss, and defendants having advance d meritorious arguments, they are entitled to dismissal, and the motion to dismiss (Doc. No. 18 ) is granted. All claims and all defendants are dismissed with prejudice. Further, the Court certifies that an appeal from this decision could not be taken in good faith. 28 U.S.C. Section 1915(a)(3). Judge Sara Lioi on 3/21/2017. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

EUGENE A. TODIE,
PLAINTIFF,
vs.
CORRECTIONS CORPORATION OF
AMERICA, et al.,
DEFENDANTS.

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CASE NO. 4:16-cv-0743
JUDGE SARA LIOI
MEMORANDUM OPINION

Before the Court is defendants’ motion to dismiss filed pursuant to Fed. R. Civ. P. 12(b)(6).
(Doc. No. 18 [“Mot.”].) The motion is unopposed by plaintiff.
Defendants raise several arguments in support of dismissal of this entire action, which was
brought under 42 U.S.C. § 1983 and, possibly, Bivens v. Six Unknown Fed. Narcotics Agents, 403
U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971): (1) that it is barred by the two-year statute of
limitations for such actions, see Mot. at 153,1 citing Browning v. Pendleton, 869 F.2d 989, 992
(6th Cir. 1989) (§ 1983) and Harris v. United States, 422 F.3d 322, 331 (6th Cir. 2005 (Bivens);
(2) that defendants are a private corporation and its individual employees who are not subject to
suit under Bivens, see Mot. at 154-55, citing Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 71, 122
S. Ct. 515, 151 L. Ed. 2d 456 (2001) and Minneci v. Pollard, 565 U.S. 118, 126, 132 S. Ct. 617,
181 L. Ed. 2d 606 (2012); and, (3) that the complaint fails to comply with the requirements of Fed.
R. Civ. P. 8, see Mot. at 155-56, citing Bell Atl. Corp. v. Twombley, 550 U.S. 544, 555, 127 S. Ct.

All page number references are to the page identification number generated by the Court’s electronic docketing
system.
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1955, 167 L. Ed. 2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L.
Ed. 2d 868.2
Under Local Rule 7.1(d), plaintiff was required to file any opposition to the motion “within
thirty (30) days after service[.]” No opposition has been filed and nothing on the docket suggests
that plaintiff was not served with a copy of the motion. In fact, ten (10) days after the motion to
dismiss was filed, plaintiff filed a “motion for an additional 28-56 days” (Doc. No. 20), seeking
an extension of time to respond to the motion to dismiss. The Court, therefore, concludes that
plaintiff was actually served with defendants’ motion to dismiss.
The Court also notes that plaintiff’s motion for extension of time was promptly denied by
the assigned magistrate judge, but the service copy of the denial order that was sent to plaintiff by
regular U.S. Mail was returned to the Clerk because plaintiff has failed to keep a current address
on file. (See Doc. No. 25, returned mail.) Indeed, the very last entry on the docket is another piece
of returned mail, reflecting the fact that the Clerk still does not have a current address for plaintiff.
(See Doc. No. 48, docketed on March 15, 2017). This is plaintiff’s responsibility, and plaintiff’s
failure. He has previously been explicitly ordered to provide a current address and did so at one
time, but then apparently moved again. (See Doc. Nos. 26 and 35.)
Although pro se litigants are typically allowed more leeway than a person represented by
counsel, this practice has its limits. Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996). At the
very least, it is to be expected that a litigant both keep on file a current address and respond in a

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The complaint (Doc. No. 1) is less than clear, although lengthy. Plaintiff appears to be claiming, under § 1983 and
perhaps Bivens, violations of his first and eighth amendment rights while he was incarcerated at a privately-run
correctional facility, relating largely (but not entirely) to his medical treatment (and, in particular, complaints regarding
his medications), as well as administrative grievances related to those complaints. He names as defendants the
Corrections Corporation of America and several of its individual employees, most of whom have never been served,
and all of whom are private actors. The movants seek dismissal of all defendants and all claims.

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timely fashion to dispositive motions.3 Further, the Court itself need not fashion arguments on
plaintiff’s behalf in opposition to defendants’ motion. See Erwin v. Edwards, 22 F. App’x 579,
580 (6th Cir. 2001).
Plaintiff has utterly, and in every respect, failed to prosecute his claims and/or to defend
against the motion. It is clear to the Court that plaintiff has abandoned his claims by failing to keep
the Clerk apprised of his current address and, more importantly, by failing to oppose the motion
to dismiss.4 Scott v. State of Tennessee, 878 F.2d 382 (Table), 1989 WL 72470, *2 (6th Cir.1989)
(“[I]f a plaintiff fails to respond or to otherwise oppose a defendant’s motion, then the district court
may deem the plaintiff to have waived opposition to the motion.”).
There being no opposition to the motion, and defendants having advanced meritorious
arguments, they are entitled to dismissal, and the motion to dismiss (Doc. No. 18) is granted. All
claims and all defendants are dismissed with prejudice. Further, the Court certifies that an appeal
from this decision could not be taken in good faith. 28 U.S.C. § 1915(a)(3).

IT IS SO ORDERED.
Dated: March 21, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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See Fed. R. Civ. P. 41(b) (imposing on plaintiff the duty to prosecute an action and making dismissal for failure to
do so generally a dismissal on the merits).
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Even if plaintiff had assumed that his extension had been granted (since he did not receive the denial order), his
response would have been due at the latest “28-56 days” after the motion was filed on July 22, 2016. That deadline
has long since passed.

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