Hellmuth v. City of Middletown, Ohio et al

Filing 31

ORDER adopting 29 Report and Recommendation, granting 16 Defendants' Motion for Judgment on the Pleadings, denying 17 and 26 Plaintiff's Motions for Summary Judgment, and entering judgment in Defendants' favor with Prejudice. Signed by Judge Douglas R. Cole on 11/12/20. (sct)(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
DANIEL L. HELLMUTH,
Plaintiff,
Case No. 1:19-cv-303
JUDGE DOUGLAS R. COLE
Magistrate Judge Bowman

v.
CITY OF MIDDLETOWN, OHIO, et
al.,
Defendants.

ORDER
This cause comes before the Court on the Magistrate Judge’s May 20, 2020,
Report and Recommendation (“R&R”) (Doc. 29). The Magistrate Judge recommends
that the Court GRANT Defendants’ Motion for Judgment on the Pleadings (Doc. 16),
DENY Plaintiff’s Motions for Summary Judgment (Docs. 17 and 26), and accordingly
ENTER JUDGMENT in Defendants’ favor WITH PREJUDICE. The Magistrate
Judge recommends that result both (1) on the merits, and (2) based on Hellmuth’s
failure to prosecute. (R&R at #236). The R&R advised all parties that failure to object
within the 14 days specified by the R&R may result in forfeiture of rights on appeal,
which includes the right to District Court review. (See id. at #237). See also Thomas
v. Arn, 474 U.S. 140, 152 (1985) (“There is no indication that Congress, in enacting
§ 636(b)(1)(C), intended to require a district judge to review a magistrate’s report to
which no objections are filed.”); Berkshire v. Beauvais, 928 F.3d 520, 530 (6th Cir.
2019) (noting “fail[ure] to file an objection to the magistrate judge’s R & R … is

forfeiture”); 28 U.S.C. § 636(b)(1)(C). The time for filing objections has passed and no
party has filed one.
That could end the matter, but there is one additional wrinkle. Hellmuth is
appearing pro se. The Court sent the R&R to the address that Hellmuth has on file
with the Clerk’s Office, but that mailed document came back on June 17, 2020,
marked “Not Deliverable as Addressed” and “Unable to Forward.” (See Doc. 30, #238).
It appears that Hellmuth moved, and has failed to provide the Court his new address
or other contact information.
The Court must thus consider what impact, if any, the inability to deliver the
R&R to Hellmuth has on the Court’s review of the R&R. Fortunately, precedent
provides helpful guidance on this issue. As another court in this District recently
explained, citing Sixth Circuit caselaw:
Plaintiff has an affirmative duty to notify the Court of any change in
address. See Barber v. Runyon, No. 93-6318, 1994 WL 163765, at *1 (6th
Cir. May 2, 1994) (“If [pro se Plaintiff’s] address changed, she had an
affirmative duty to supply the court with notice of any and all changes
in her address.”); see also Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir.
1991) (“[W]hile pro se litigants may be entitled to some latitude when
dealing with sophisticated legal issues ... there is no cause for extending
this margin to straightforward procedural requirements that a
layperson can comprehend.”); Walker v. Cognis Oleo Chem., LLC, No.
1:07cv289, 2010 WL 717275, at *1 (S.D. Ohio Feb. 26, 2010) (“By failing
to keep the Court apprised of his current address, Plaintiff demonstrates
a lack of prosecution of his action.”).
Oesch v. Ohio Dep’t of Corr., No. 2:19-cv-1758, 2019 WL 2289836, at *1 (S.D. Ohio
May 29, 2019) (alterations in original). In short, it is not the Court’s job to track down
a missing litigant, but rather the litigant must ensure that the Court has accurate
contact information. Hellmuth has had roughly five months to provide updated
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contact information to the Clerk’s Office, and he has not done so. That is additional
evidence confirming his ongoing failure to prosecute this matter.
Based both on Hellmuth’s failure to timely file an objection, as well as his
failure to prosecute this action, the Court ADOPTS the Report and Recommendation
(Doc. 29), GRANTS Defendants’ Motion for Judgment on the Pleadings (Doc. 16),
DENIES Plaintiff’s Motions for Summary Judgment (Docs. 17 and 26), and
accordingly ENTERS JUDGMENT in Defendants’ favor WITH PREJUDICE. The
Court DIRECTS the Clerk to enter judgment accordingly.
SO ORDERED.
November 12, 2020
DATE

DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE

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