Smith v. Smith

Filing 15

REPORT AND RECOMMENDATION that plaintiff's case be Dismissed in its entirety for want of prosecution and for failure to obey an Order of the Court. Objections to R&R due by 5/6/2013. Signed by Magistrate Judge Karen L. Litkovitz on 4/18/2013. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
TONYA J. SMITH,
Plaintiff
vs
LINDA D. SMITH, et al.,
Defendants.

Case No. 1: 12-cv-341
Beckwith, J.
Litkovitz, M.J.

REPORT AND
RECOMMENDATION

Plaintiff, proceeding pro se, initiated this action in April 20 12 against defendants
Linda D. Smith, Medical Director Department of Veterans Affairs, and EricK. Shinseki,
the Secretary of the United States Department of Veterans Affairs. (Doc. 1, attachment
1). On January 16,2013, plaintiff sought to amend the complaint naming EricK.
Shinseki, the Secretary of the United States Department of Veterans Affairs, as the sole
defendant in this matter. (Doc. 9).
On January 18, 2013, plaintiff was directed by the Court pursuant to Fed. R. Civ.
P. 11, to sign the amended complaint and return it to the Clerk of Court within fifteen
( 15) days if she still wished to file the amended complaint, and to serve a summons form
and a copy of her signed amended complaint within sixty (60) days on the defendant
pursuant to Fed. R. Civ. P. 4 (i). The Court's Order also informed plaintiff that failure to
comply with the Order would result in the amended complaint being stricken from the
docket of the Court. (Doc. 11). On February 25, 2013, the Order ofthe Court sent via
certified mail to plaintiff was returned to the Clerk of Court by the U. S. Postal Service

marked "Unclaimed- Return to Sender." (Doc. 12).
On March 18, 2013, plaintiff was again Ordered to show cause in writing within
twenty (20) days why the amended complaint should not be stricken from the record. The
Court's Order also informed plaintiff that failure to comply with terms of the order shall
result in a report and recommendation to the District Court that plaintiff's amended
complaint be stricken from the docket of the Court, and that all claims against defendants
be dismissed for lack of prosecution. (Doc. 13). On April 12, 2013, the Order of the
Court sent via certified mail to plaintiff was returned to the Clerk of Court by the U.S.
Postal Service marked "Unclaimed- Return to Sender." (Doc. 14). To date, plaintiff has
failed to respond to the Court's Orders.
Plaintiff's failure to prosecute this matter and to obey an Order of the Court
warrants dismissal of this case pursuant to Fed. R. Civ. P. 41(b). See Jourdan v. Jabe,
951 F.2d 108, 109-10 (6th Cir. 1991). District courts have the power to sua sponte
dismiss civil actions for want of prosecution to "manage their own affairs so as to achieve
the orderly and expeditious disposition of cases." Link v. Wabash R.R., 370 U.S. 626,
630-631 ( 1962). See also Jourdan, 951 F .2d at 109. Though plaintiff is proceeding
prose, as stated by the Supreme Court, "we have never suggested that procedural rules in
ordinary civil litigation should be interpreted so as to excuse mistakes by those who
proceed without counsel." McNeil v. United States, 508 U.S. 106, 113 (1993).

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IT IS THEREFORE RECOMMENDED THAT plaintiff's case be DISMISSED
in its entirety for want of prosecution and for failure to obey an Order of the Court.

IT SO ORDERED.
Date:

~X~

'!j~

Karen L. Litkovitz

United States Magistrate Judge

3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
TONYAJ. SMITH,

Case No. 1: 12-cv-341

Plaintiff

Beckwith, J.

vs

Litkovitz, M.J.

LINDA D. SMITH, et al.,
Defendants.

NOTICE TO THE PARTIES REGARDING FILING OF OBJECTIONS TO THIS R&R
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections
to these proposed findings and recommendations within FOURTEEN DAYS after being served
with this Report and Recommendation ("R&R"). Pursuant to Fed. R. Civ. P. 6(e), this period is
automatically extended to seventeen days (excluding intervening Saturdays, Sundays, and legal
holidays) because this R&R is being served by mail. That period may be extended further by the
Court on timely motion for an extension. Such objections shall specify the portions of the R&R
objected to, and shall be accompanied by a memorandum oflaw in support of the objections. If
the R&R is based, in whole or in part, upon matters occurring of record at an oral hearing, the
objecting party shall promptly arrange for the transcription of the record, or such portions of it as
all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District
Judge otherwise directs. A party may respond to another party's objections within FOURTEEN

DAYS after being served with a copy thereof. Failure to make objections in accordance with this
procedure may forfeit rights on appeal. See United States v. Walters, 638 F. 2d 947 (6th Cir.
1981); Thomas v. Arn, 474 U.S. 140 (1985).
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PS Form 3811, February 2004

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