Brown v. Ross County et al
REPORT AND RECOMMENDATION re 66 MOTION to Dismiss for Lack of Prosecution . It is RECOMMENDED that Defendants' Motion be GRANTED and that the Court DISMISS Plaintiff's action pursuant to Rule 41(b) of the Federal Rules of Civi l Procedure for failure to prosecute. Objections to R&R due by 10/13/2015. Signed by Magistrate Judge Elizabeth Preston Deavers on 9/24/2015. (mas)(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
LELAND LEE BROWN
Civil Action 2:14-cv-333
Judge Gregory L. Frost
Magistrate Judge Elizabeth P. Deavers
ROSS COUNTY, et al.,
REPORT AND RECOMMENDATION
This matter is before the Court for consideration of Defendants’ Motion to Dismiss for
Failure to Prosecute. (ECF No. 66.) For the reasons that follow, it is RECOMMENDED that
the Motion be GRANTED and that the Court DISMISS Plaintiff’s action pursuant to Rule 41(b)
of the Federal Rules of Civil Procedure for failure to prosecute.
This Court’s August 7, 2015 Order was returned as undeliverable to Plaintiff at his
address of record. (ECF No. 64.) In that order, the Court directed Plaintiff to respond to
Defendants’ Motion for Summary Judgment. When it was returned, on September 4, 2015, the
Court directed Plaintiff to provide confirmation of his most recent address within fourteen days.
(ECF No. 65.) As of this Report, Plaintiff has failed to do so. Moreover, he has failed to
respond to Defendants’ Motion for Summary Judgment.
A litigant 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, he 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, Petitioner demonstrates a lack of prosecution of his action.”).
A litigant’s failure to supply the Court with an updated address subjects the action to
dismissal under Federal Rule of Civil Procedure 41(b). Fed. R. Civ. P. 41(b) (providing for
dismissal where “the plaintiff fails to prosecute . . . .”); see also Kosher v. Butler Cnty. Jail, No.
1:12-cv-51, 2012 WL 4808546, *2 (S.D. Ohio Sept. 9, 2012) (citing Buck v. U.S. Dep’t of
Agriculture, Farmers Home Admin., 960 F.2d 603, 608-09 (6th Cir. 1992)) (“Without such basic
information as a Plaintiff’s current address, courts have no recourse but to dismiss a complaint
for failure to prosecute.”) (Report and Recommendation Adopted). “When contemplating
dismissal of an action under Rule 41(b), a court must consider: (1) whether the party’s failure to
cooperate is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by
the dilatory conduct of the party; (3) whether the dismissed party was warned that failure to
cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or
considered before dismissal was ordered.” Id. (citing Stough v. Mayville Comty Schs., 138 F.3d
612, 615 (6th Cir. 1998)); see also Sullivan v. Waffle House, No. 1:06-cv-63, 2006 WL 3007360
(E.D. Tenn. Oct. 19, 2006) (applying the four-point inquiry to a plaintiff’s failure to update his
Here, Plaintiff has failed to provide his current address despite a direct Order from this
Court directing him to do so. Applying the four-factor inquiry to this case, the Undersigned
concludes that dismissal is appropriate for Plaintiff’s failure to prosecute. First, Plaintiff’s
failure to update his address demonstrates reckless disregard for how his actions, or lack of
action, impact his case. See Sullivan, 2006 WL 3007360, at *2 (“While the Court cannot
conclude that Plaintiff has displayed an intent to thwart judicial proceedings, the Court does
conclude that his failure to update his address exhibits a reckless disregard for the effect of his
conduct on these proceedings.”). Plaintiff has left the Court and Defendants with no way to
contact him regarding his case. He has failed to respond to Defendants’ Motion for Summary
Judgment. He has provided no means of receiving notification when motions are filed or other
proceedings occur requiring his response or opposition.
Second, although the record does not affirmatively indicate that Defendant has suffered
prejudice from Plaintiff’s failure to prosecute, the Court presumes that the unnecessary delay in
moving this case forward prejudices Defendant.
Third, Plaintiff has been warned that the failure to update his address will result in
dismissal of this action. Although the Court’s Order was returned as undeliverable, the Court
has nevertheless attempted to warn Plaintiff that his conduct will result in dismissal of this
action. See Sullivan, 2006 WL 3007360, at *2 (dismissing action even though the Court’s
warnings did not reach the plaintiff due to his failure to update his address).
Finally, the Undersigned concludes that there is no sanction less drastic than dismissal
that would be appropriate under the circumstances. There is no sanction the Court could impose
that would reach Petitioner because he has left this Court with no means of contacting him. See
id. (“[E]ven if the Court were to implement sanctions less drastic than dismissal, the case would
remain stalled due to the Court’s inability to communicate with Plaintiff.”). Accordingly, the
Undersigned finds that dismissal of this action is appropriate.
For the reasons set forth herein, it is RECOMMENDED that Defendants’ Motion be
GRANTED and that the Court DISMISS Plaintiff’s action pursuant to Rule 41(b) of the Federal
Rules of Civil Procedure for failure to prosecute.
PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
IT IS SO ORDERED.
September 24, 2015
/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE
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