Smith v. Doe et al

Filing 51

ORDER adopting Report and Recommendation re 48 Report and Recommendation granting 44 Motion for Summary Judgment. Signed by Judge Michael R. Barrett on 4/18/17. (ba)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION Marcellus Smith, Jr., Plaintiff, v. Case No. 1:14cv948 John Doe, et al., Judge Michael R. Barrett Defendant. ORDER This matter is before the Court on the Report and Recommendation filed by the Magistrate Judge on February 28, 2017 (Doc. 48). 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, it was returned to the Court due to Plaintiff=s failure to apprise the Court of his change of address (Doc. 50). 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 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 1 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). Accordingly, no objections to the Magistrate Judge=s Report and Recommendation (Doc. 48) have been filed. Therefore, it is ORDERED that the Report and Recommendation (Doc. 48) of the Magistrate Judge is hereby ADOPTED. Defendants’ Motion for Summary Judgment (Doc. 44) is GRANTED. Any request for certificate of appealability or request to certify an appeal would not be taken in good faith and would be denied. IT IS SO ORDERED. /s/ Michael R. Barrett Michael R. Barrett United States District Judge 2

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