Harris v. Erdos et al

Filing 46

ORDER adopting 45 the R&R in full. The Court thus dismisses 3 Harris's Complaint with prejudice.The Court certifies, under 28 U.S.C. § 1915(a)(3), that any appeal of this Order would not be taken in good faith. Signed by Judge Douglas R. Cole on 12/27/22. (sct)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 1:20-cv-00336-DRC-KLL Doc #: 46 Filed: 12/27/22 Page: 1 of 3 PAGEID #: 326

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CORNELIUS L. HARRIS,
Plaintiff,
Case No. 1:20-cv-336
JUDGE DOUGLAS R. COLE
Magistrate Judge Litkovitz

v.
RONALD ERDOS, et al.,
Defendants.

ORDER
This cause is before the Court on the Magistrate Judge’s November 16, 2022,
Report and Recommendation (“R&R,” Doc. 45) recommending that this Court dismiss
Plaintiff Cornelius Harris’s Complaint (Doc. 3) for want of prosecution. For the reason
below and given the lack of any objections to the R&R, the Court ADOPTS the R&R
(Doc. 45) in full and DISMISSES Harris’s Complaint (Doc. 3) WITH PREJUDICE.
Harris, an inmate at the Ohio State Penitentiary, sued Ronald Erdos and
various other prison officials on April 28, 2020. After the Magistrate Judge granted
his application and affidavit to proceed without prepayment of fees (Doc.1), his
complaint was filed on May 20, 2020.1 (Doc. 3). After some back and forth over Erdos’s
request for a preliminary injunction and various discovery squabbles, the Defendants
moved for summary judgment under Federal Rule of Civil Procedure 56 on April 28,
2022. (Doc. 41). The next day, the Magistrate Judge notified Harris that failure to

Harris filed the Complaint while incarcerated at the Southern Ohio Correctional Facility in
Lucasville.

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Case: 1:20-cv-00336-DRC-KLL Doc #: 46 Filed: 12/27/22 Page: 2 of 3 PAGEID #: 327

respond may warrant dismissal of his case under Rule 41(b). (Doc. 42). That rule gives
courts the authority to dismiss for “failure of the plaintiff to prosecute or to comply
with these rules or any order of the court.” Fed. R. Civ. P. 41(b). Harris did not
respond to either the Defendants’ Motion or the Magistrate Judge’s notice.
On October 18, 2022, the Magistrate Judge issued a show cause order
demanding Harris explain why the Court should not dismiss his case for failure to
prosecute. (Doc. 44). That order required Harris to respond in fifteen days and
notified him that failure to comply could result in the Magistrate Judge
recommending that this Court dismiss the case. (Id.). Harris again did not respond.
The Magistrate Judge then issued the R&R, recommending—as she warned
Harris—that this Court dismiss his complaint. (Doc. 45). The R&R also advised the
parties that failure to object within 14 days may result in forfeiture of rights,
including the right to district court review. (Id. at #325). See 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).
Neither party objected. Still, the advisory committee notes to Federal Rule of
Civil Procedure 72(b) suggest that the Court must “satisfy itself that there is no clear
error on the face of the record in order to accept the recommendation.” See Redmon

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Case: 1:20-cv-00336-DRC-KLL Doc #: 46 Filed: 12/27/22 Page: 3 of 3 PAGEID #: 328

v. Noel, No. 1:21-cv-445, 2021 WL 4771259, at *1 (S.D. Ohio Oct. 13, 2021) (collecting
cases).
The Court has reviewed the R&R and sees no clear error, indeed no error at
all. From Harris’s failure to respond to the Defendants’ Motion for Summary
Judgment (Doc. 41), to his failure to respond to the Magistrate Judge’s show cause
order (Doc. 44), he has repeatedly failed to prosecute his case. The Magistrate Judge
offered Harris multiple chances to respond and justify his lack of cooperation, but he
has shown no interest in doing so. Cf. Palasty v. Hawk, 15 F. App’x 197 (6th Cir.
2001).
For this reason, the Court ADOPTS the R&R (Doc. 45) in full. The Court thus
DISMISSES Harris’s Complaint (Doc. 3) WITH PREJUDICE. The Court
CERTIFIES, under 28 U.S.C. § 1915(a)(3), that any appeal of this Order would not
be taken in good faith. The Court DIRECTS the Clerk to enter judgment and
TERMINATE this matter on the Court’s docket.
SO ORDERED.
December 27, 2022
DATE

DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE

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