Harvey v. Mohr et al

Filing 25

REPORT AND RECOMMENDATION that this action be dismissed without prejudice for failure to prosecute. Objections to R&R due by 3/10/2014. Signed by Magistrate Judge Terence P Kemp on 2/20/14. (sem1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Donald Harvey,

:

Plaintiff,
v.

:
:

Gary Mohr, et al.,
Defendants.

Case No. 2:12-cv-779

:

JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
Defendants filed a motion for summary judgment on
September 25, 2013, together with a supporting memorandum of law.
Despite the requirement under Local Rule 7.2(a)(2) that a
memorandum opposing the motion be filed within 21 days from the
date of service of the motion, no such memorandum was filed.

On

November 14, 2013, this Court ordered plaintiff to respond within
14 days or face dismissal of this action without prejudice for
failure to prosecute.

Despite the passage of the time for

response set forth in that order, plaintiff has not responded.
If the plaintiff fails properly to prosecute an action,
it can be dismissed either pursuant to the Court's inherent
power to control its docket, or involuntarily under Fed. R.
Civ. P. 41(b).

Link v. Wabash R. Co., 370 U.S. 626 (1962);

Boudwin v. Graystone Insurance Co., 756 F.2d 399 (5th Cir.
1985).

Dismissal for failure to prosecute can occur where,

for example, a plaintiff fails to respond to an order
directing that he file a brief.

Dynes v. Army Air Force

Exchange Service, 720 F.2d 1495 (11th Cir. 1983).

Ordinarily,

some notice of the court's intention to dismiss for failure to
prosecute is required, see Harris v. Callwood, 844 F.2d 1254 (6th
Cir. 1988), but that requirement is met if the Court affords a
plaintiff a reasonable period of time to comply with orders

before the dismissal occurs.

Sepia Enterprises, Inc. v. City of

Toledo, 462 F.2d 1315 (6th Cir. 1972)(per curiam).

Such a

dismissal is also appropriate for failure to respond to a summary
judgment motion.

See Stanley v. Continental Oil Co., 536 F.2d

914 (10th Cir. 1976); see also Lang v. Wyrick, 590 F.2d 257 (8th
Cir. 1978).
The facts of this case indicate a clear failure to
prosecute.

The Court specifically advised plaintiff that this

action would be dismissed if plaintiff failed to respond.
Plaintiff has not offered any explanation for the failure to
respond.

Therefore, the Court can only conclude that the failure

is intentional.

An intentional failure to respond to a court

order is sufficient justification for a dismissal.
For the foregoing reasons, it is recommended that this
action be dismissed without prejudice for failure to
prosecute pursuant to Fed. R. Civ. P. 41(b).

A dismissal without

prejudice would include any claims against the John/Jane Doe
defendants who have not been identified or served.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation,
that party may, within ten (10) days of the date of this
Report, file and serve on all parties written objections to
those specific proposed findings or recommendations to which
objection is made, together with supporting authority for the
objection(s).

A judge of this Court shall make a de novo

determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.

Upon proper objections, a judge of this Court may

accept, reject, or modify, in whole or in part, the findings
or recommendations made herein, may receive further evidence
or may recommit this matter to the magistrate judge with
instructions.

28 U.S.C. Section 636(b)(1).
2

The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation.

See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).

/s/ Terence P. Kemp
United States Magistrate Judge

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