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.)

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

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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).
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

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