Whiteside v. Thalheimer et al

Filing 128

ORDER adopting Report and Recommendations re 126 Report and Recommendation granting 125 Motion to Voluntarily Dismiss; and finding as moot 118 Motion to Strike. Signed by Judge Michael R. Barrett on 11/28/16. (ba)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Norman Whiteside,
Plaintiff,
v.

Case No. 1:13cv408

Trayce Thalheimer, et al.,

Judge Michael R. Barrett

Defendants.
ORDER
This matter is before the Court on the Report and Recommendation filed by the
Magistrate Judge on November 2, 2016 (Doc. 126).
Proper notice has been given to the parties under 28 U.S.C. ' 636(b)(1)(C),
including notice that the parties would waive further appeal if they failed to file objections
to the Report and Recommendation in a timely manner. United States v. Walters, 638
F.2d 947 (6th Cir. 1981). The Court notes, however, that though such notice was
served upon Plaintiff but it was returned to the Court due to Plaintiff=s failure to apprise
the Court of his change of address (see Doc. 127). By failing to keep the Court apprised
of his current address, Plaintiff demonstrates a lack of prosecution of his action. See,
e.g., Theede v. United States Department of Labor, 172 F.3d 1262, 1265 (10th Cir.
1999). Failure to object to a Magistrate Judge=s Report and Recommendation due to
delay resulting from a party=s failure to bring to the Court=s attention a change in address
constitutes failure to object in a timely manner. Because the Recommendation was
mailed to the last known address, it was properly served, and party waived right to
appellate review. See also Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991) (A pro se

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litigant has an affirmative duty to diligently pursue the prosecution of his cause of action);
Barber v. Runyon, No. 93-6318, 1994 WL 163765, at *1 (6th Cir. May 2, 1994). A pro se
litigant has a duty to supply the court with notice of any and all changes in his address.
As such, no objections to the Magistrate Judge=s Report and Recommendation (Doc.
126) have been filed.
Accordingly, it is ORDERED that the Report and Recommendation (Doc. 126) of
the Magistrate Judge is hereby ADOPTED. Plaintiff’s Motion to Voluntarily Dismiss the
Complaint (Doc. 125) is GRANTED; Plaintiff’s Motion to Strike (Doc. 118 is DENIED AS
MOOT; and this matter is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
s/Michael R. Barrett
Michael R. Barrett
United States District Judge

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