Belcher v. Warden, Southern Ohio Correctional Facility et al

Filing 25

REPORT AND RECOMMENDATION that the 3 Complaint be Stricken pursuant to FRCP 11, and this case be Dismissed with prejudice for want of prosecution. Defendant's 13 MOTION to Dismiss the complaint on the ground it is deficient, and defendant's 23 MOTION to Dismiss the lawsuit for lack of prosecution be Denied as moot. Objections to R&R due by 10/3/2013. Signed by Magistrate Judge Karen L. Litkovitz on 9/16/2013. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
LARRY BELCHER,
Plaintiff,
vs.
WARDEN, SOUTHERN OHIO
CORRECTIONAL FACILITY, et al.,
Defendants.

Case No. 1: 12-cv-985
Weber, J.
Litkovitz, M.J.

REPORT AND
RECOMMENDATION

This matter is before the Court on defendant Jeremy Rideout's motion to dismiss the
complaint on the ground it is deficient (Doc. 13) and defendant's motion to dismiss the lawsuit
for lack of prosecution pursuant to Fed. R. Civ. P. 41(b) (Doc. 23). Plaintiff has not filed a
response to either motion.
Plaintiff, proceeding pro se, filed the complaint in this action in forma pauperis on
January 9, 2013. (Doc. 3). Defendant Rideout moved to dismiss the complaint on April 12,
2013, on the ground the complaint is deficient because it is not signed. (Doc. 13). In the
alternative, in the event the Court chose to issue a deficiency order and plaintiff were to comply
by filing a signed version of the complaint, defendant requested that the Court order that the
signed complaint be served on both defendant Rideout and defendant M. Brown and that
defendants be allowed time to respond. Defendants acknowledged that if plaintiff timely filed a
signed complaint in response to a deficiency order, the motion to dismiss would likely be
rendered moot.
The undersigned issued a deficiency order on August 2, 2013 (Doc. 21), finding the
complaint is deficient pursuant to Fed. R. Civ. P. 11(a), which requires that every pleading,

written motion, and other paper shall be signed by the party personally if the party is not
represented by counsel. The deficiency order directed the Clerk of Court to return the complaint
to plaintiff, and further directed plaintiff to sign his complaint and return the complaint to the
Clerk of Court within 30 days if he still wished to file a complaint in this matter. The deficiency
order stated that the Court would defer ruling on defendant Rideout's motion to dismiss (Doc.
13) until plaintiff had an opportunity to comply with the order.
Although more than 30 days have elapsed since plaintiff was served with the deficiency
order (see Doc. 22), plaintiff has not submitted a signed complaint to date in this action. The
unsigned complaint plaintiff originally submitted must be stricken pursuant to Rule 11. See Fed.
R. Civ. P. 11(a) ("The Court must strike an unsigned paper unless the omission is promptly
corrected after being called to the ... party's attention."). Plaintiffs failure to respond to the
deficiency order issued by the Court and to submit a valid, signed complaint that satisfies the
requirements of Rule 11 warrants dismissal of this case pursuant to Fed. R. Civ. P. 41(b) for
failure to prosecute this matter. See Linkv. Wabash R.R., 370 U.S. 626,630-631 (1962). See

also Jourdan v. Jabe, 951 F.2d 108, 109-10 (6th Cir. 1991). District courts have this power to
dismiss civil actions for want of prosecution to "manage their own affairs so as to achieve the
orderly and expeditious disposition of cases." Link, 370 U.S. at 630-631; Jourdan, 951 F.2d at
109.

2

IT IS THEREFORE RECOMMENDED THAT:
(1) The complaint be STRICKEN pursuant to Fed. R. Civ. P. 11, and this case be DISMISSED
with prejudice for want of prosecution.
(2) Defendant's motion to dismiss the complaint on the ground it is deficient (Doc. 13) and
defendant's motion to dismiss the lawsuit for lack of prosecution (Doc. 23) be DENIED as
moot.

q/;r,/;3

Date: --~.~~~=----Karen L. Litkovitz, Magistrate Ju
United States District Court

3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Case No. 1:12-cv-985

LARRY BELCHER,
Plaintiff,

Weber, J.
Litkovitz, M.J.

vs.

WARDEN, SOUTHERN OHIO
CORRECTIONAL FACILITY, et al.,
Defendants.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the 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 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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