Perdue v. Ohio Department of Corrections, et al.

Filing 49

ORDER granting 46 Motion to Dismiss; dismissing plaintiff's complaint. A certificate of appealability will not issue; plaintiff is denied leave to appeal IFP. Signed by Judge Sandra S Beckwith on 5/31/16. (mb)(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
Robert E. Perdue,
Plaintiff,
vs.
Ohio Department of Corrections, et al,
Defendants.

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Case No. 1:14-cv-084

ORDER
Plaintiff Robert Perdue filed his original pro se complaint on January 28, 2014,
alleging various constitutional and civil rights claims against the Ohio Department of
Corrections and several individual officers. (Doc. 1) As the docket reflects, Plaintiff
vigorously pursued his claims and filed motions seeking various forms of relief. On
February 2, 2016, after several months of inactivity in the case, the Magistrate Judge
entered a calendar order setting a discovery deadline of June 2, and a dispositive motion
deadline of July 2, 2016. (Doc. 42)
On May 2, 2016, Defendants filed a motion to dismiss the complaint for lack of
prosecution. (Doc. 46) The motion states that mail addressed to Plaintiff at his address of
record has been returned to the Attorney General's office. The Court's docket also reflects
that the copy of the February 2 calendar order mailed to Plaintiff was returned to this Court
with a handwritten note stating that Plaintiff was "paroled 7-20-15." (Doc. 44) Plaintiff has
not notified the Court of his new address, despite this Court's prior order requiring him to
promptly notify the Court of any change in his address and location. (See Doc. 12)
Defendants assert that they are unable to contact Plaintiff to schedule his deposition and

complete discovery, and that it appears Plaintiff has either abandoned his case or he does
not wish to proceed. Defendants also contend that because he has failed to inform the
Court and the Defendants of his whereabouts, he has failed to state a claim for relief,
entitling Defendants to a dismissal with prejudice.
The Court notified Plaintiff that he was required to timely respond to Defendants'
motion to dismiss, warning him that if he did not do so the Court would dismiss his case for
failure to prosecute. (Doc. 47) That notice was also returned to the Court, marked as
undeliverable/unable to forward, with a handwritten note stating "Released 7-20-15." (Doc.
48) Plaintiff has not timely responded to Defendants' motion to dismiss. He has failed to
inform the Court of his current address, and he has not responded to notices issued by the
Court. Nor has he taken any steps to move his case toward trial or resolution for over a
year. The Court can only conclude that Plaintiff has not diligently prosecuted his lawsuit.
Therefore, for good cause shown, Defendants' motion to dismiss (Doc. 46) is granted.
The Court hereby dismisses Plaintiff's complaint, without prejudice, for failure to prosecute
pursuant to Fed. R. Civ. Proc. 41(b).
The Court certifies, pursuant to 28 U.S.C. §1915(a)(3), that an appeal of this Order
would not be taken in good faith, and denies Hill leave to appeal in forma pauperis. See
McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).
SO ORDERED.
THIS CASE IS CLOSED.
DATED: May 31, 2016

s/Sandra S. Beckwith
Sandra S. Beckwith, Senior Judge
United States District Court
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