Lewis v. Eppinger

Filing 10

Memorandum Opinion and Order: The Court has reviewed the Report and Recommendation (Doc. No. 9 ) and ACCEPTS the recommendation that this case be dismissed without prejudice for failure to prosecute pursuant to Rule 41(b). Accordingly, the petition is DENIED and DISMISSED. IT IS SO ORDERED. Judge Bridget Meehan Brennan on 2/5/2024. (H,AR)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
WALLACE LEWIS,
)
)
CASE NO. 4:21-cv-412
Petitioner,
)
)
v.
)
JUDGE BRIDGET MEEHAN BRENNAN
)
LaSHANN EPPINGER, Warden,
)
MEMORANDUM OPINION
)
AND ORDER
Respondent.
)

Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge
Jennifer Dowdell Armstrong, recommending that the Court dismiss this action without prejudice
for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) and that this action be
stricken from the Court’s active docket. (Doc. No. 9-1.)
For the reasons stated herein, the Court accepts the recommendation that this action be
dismissed without prejudice. Accordingly, Petitioner Lewis’s petition is denied, and this action
is dismissed without prejudice. The Court does not accept the recommendation that this action
be stricken from the Court’s active docket.
I.

Background
On February 22, 2021, Petitioner Wallace Lewis filed his petition for writ of habeas

corpus under 28 U.S.C. § 2254. (Doc. No. 1).1 On June 28, 2021, Respondent filed a return of
writ. (Doc. No. 5.) On July 16, 2021, Petitioner sought leave for an extension of time to file a
traverse. (Doc. No. 6.) The Court granted this motion and ordered that the deadline to file a
traverse be extended to September 28, 2021. (Doc. No. 7.) Petitioner did not file a traverse by
this date.

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For ease and consistency, record citations are to the electronically stamped CM/ECF document
number and PageID# rather than any internal pagination.
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On September 2, 2022, this case was referred to Judge Armstrong. (September 2, 2022
Order.) Notice of this referral was sent to Petitioner. This notice was marked “return to sender”
on September 19, 2022. (Doc. No. 8.) Petitioner was “located using the Ohio Department of
Rehabilitation and Corrections Inmate Search and this notice was re-mailed to the correct
address.” (Id.)
On October 20, 2023, Judge Armstrong issued an order that advised Petitioner that he had
not filed a traverse and provided a final deadline of November 17, 2023 to do so, or the Court
would proceed to consider the writ. (October 20, 2023 Order.) This order further advised
Petitioner of his obligation to “keep the court apprised of his current address” and notified
Petitioner that “failure to do so may result in dismissal of this action for failure to prosecute
pursuant to Federal Rule of Civil Procedure 41(b).” (Id.) Petitioner did not file a traverse by
November 17, 2023, nor did he update his address.
On November 30, 2023, Judge Armstrong issued a R&R recommending that the petition
be “(1) dismissed without prejudice due to his failure to prosecute and to comply with the
Court’s Order dated October 20, 2023; and (2) this action be stricken from the Court’s active
docket.” (Doc. No. 9-1 at 1023-24.) A corrected version of the R&R was mailed to Petitioner
on December 1, 2023.
II.

Law and Analysis
Under the relevant statute:
Within fourteen days after being served with a copy, any party may serve and file
written objections to such proposed findings and recommendations as provided by
rules of court. A judge of the court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
objection is made.

28 U.S.C. § 636(b)(1)(C) (flush language).

2

The corrected R&R was sent to Petitioner on December 1, 2023. No objection to the
R&R has been filed, and the deadline has since passed. The failure to timely file written
objections to a report and recommendation of a magistrate judge constitutes a waiver of de novo
review by the district court. United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981);
Thomas v. Arn, 728 F.2d 813 (6th Cir. 1984), aff’d, 474 U.S. 140 (1985). The failure to file
written objections also results in a waiver of the right to appeal. Thomas, 728 F.2d at 815.
The Court has reviewed the R&R and ACCEPTS the recommendation that this case be
dismissed without prejudice for failure to prosecute pursuant to Rule 41(b). Accordingly, the
petition is DENIED and DISMISSED.
IT IS SO ORDERED.
____________________________________
BRIDGET MEEHAN BRENNAN
UNITED STATES DISTRICT JUDGE

Date: February 5, 2024

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