Hendricks et al v. Ohio Department of Rehabilitation & Corrections et al

Filing 30

REPORT AND RECOMMENDATION re 1 Complaint. It is RECOMMENDED that the Court DISMISS this action pursuant to Federal Rule of Civil Procedure 41(b). It is also RECOMMENDED that Plaintiff Nameth's claims be DISMISSED WITH PREJUDICE for want of prosecution. Objections to R&R due by 5/18/2015. Signed by Magistrate Judge Elizabeth Preston Deavers on 4/30/2015. (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
EASTERN DIVISION

BENJAMIN HENDRICKS, et al.,
Plaintiffs,
Civil Action 2:14-cv-1841
Judge Gregory L. Frost
Magistrate Judge Elizabeth P. Deavers

v.

OHIO DEPARTMENT OF
REHABILITATION & CORRECTIONS, et al.,
Defendants.
REPORT AND RECOMMENDATION
This matter is before the Court for consideration of Plaintiffs’ failure to respond to the
Court’s April 2, 2015 Show Cause Order. (ECF No. 29.) For the reasons that follow, it is
RECOMMENDED that the Court DISMISS this action pursuant to Federal Rule of Civil
Procedure 41(b).
I.
Plaintiffs 1 filed their Complaint on October 8, 2014, but failed to pay the required filing
fee or submit applications to proceed in forma pauperis (“IFP”). (ECF No. 1.) On October 16,
2014, the Court ordered Plaintiffs to correct these deficiencies within thirty (30) days. (ECF No.
2.) On November 20, 2014, Plaintiffs requested an extension of time to file applications to
proceed IFP, which the Court granted. (ECF Nos. 3, 5.) Plaintiff Backus also submitted a
Motion to Withdraw as a named Plaintiff, which the Court granted. (ECF Nos. 4, 5.)

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The original Plaintiffs that signed and filed the Complaint include Benjamin Hendricks,
Robert Austin, Earl Steidl, Geoffrey Dupuis, James Carpenter, John Nameth, Donald Williams,
Gregory Backus, George Coverdale, Mark Randall, and Gerald Lupinski. (See Compl., ECF No.
1.)

By December 3, 2014, the Court received IFP applications from Plaintiffs Dupuis,
Randall, Williams, Coverdale, Lupinski, Nameth, Steidl, and Hendricks. (ECF Nos. 6-13.)
Because Plaintiffs Carpenter and Austin had not paid the filing fee or submitted applications to
proceed IFP, the Court ordered them to do so within fourteen (14) days. (ECF No. 19.) The
Court specifically warned Plaintiffs Carpenter and Austin that if they did not pay the filing fee or
file an IFP application, they would be assessed the full filing fee for which they are responsible
and would be dismissed from the action. Id.
On January 7, 2015, the Court granted the Motions for Leave to Proceed IFP of Plaintiffs
Dupuis, Randall, Williams, Coverdale, Lupinski, Steidl, and Hendricks. (ECF No. 25). The
Undersigned also recommended that Plaintiff Nameth’s Motion to Proceed IFP be denied and
that he be required to pay his portion of the filing fee, $40.00, within twenty (21) days. Plaintiff
Nameth was specifically cautioned that failure to do so would result in dismissal of his claims.
(ECF No. 25.) Finally, because they did not comply with the Court’s previous Orders, the
Undersigned recommended that Plaintiffs Carpenter and Austin be assessed the $40.00 filing fee
and that their claims be dismissed for want of prosecution. Id. On January 28, 2015, the Court
adopted the Report and Recommendation and denied Plaintiff Nameth’s Motion for Leave to
Proceed IFP and dismissed Plaintiffs Carpenter and Austin from the action. (ECF No. 26.)
On February 13, 2015, the Undersigned conducted an initial screen of Plaintiffs’
Complaint pursuant to 28 U.S.C. § 1915(e)(2) and concluded that Plaintiffs’ Complaint violates
Federal Rule of Civil Procedure 8(a)’s requirement that a complaint must contain a short, plain
statement of the claim(s). (ECF No. 27.) Specifically, the Undersigned found that Plaintiffs
failed to set out the particular facts that support each claim. Further, the Undersigned could not
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discern which claims each Plaintiff intended to assert against each Defendant. Rather than
recommending dismissal of Plaintiffs’ Complaint on this basis, the Court afforded Plaintiff an
opportunity to remedy the deficiencies and ordered that they do so within thirty (30) days. The
Court specifically cautioned Plaintiffs that the Court may dismiss their action if they failed to
timely comply with the Order. Id.
Plaintiffs did not correct the deficiencies in their Complaint within thirty (30) days as
ordered by the Court. Accordingly, on April 2, 2015, the Court again ordered Plaintiffs to file an
amended complaint that complies with the Court’s February 13, 2015 Order within fourteen (14)
days or to show cause why this case should not be dismissed with prejudice for want of
prosecution pursuant to Federal Rule of Civil Procedure 41(b). (ECF No. 29.) Plaintiffs were
once again specifically cautioned that failure to comply with the Court’s Order would likely
result in dismissal of this action with prejudice. To date, Plaintiffs have not corrected the
deficiencies in their Complaint as ordered by the Court on February 13, 2015, nor have they
responded to the Court’s April 2, 2015 Show Cause Order.
II.
The Court’s inherent authority to dismiss a plaintiff’s action because of his or her failure
to prosecute or comply with rules or court orders is expressly recognized in Rule 41(b), which
provides in pertinent part: “If the plaintiff fails to prosecute or comply with these rules or a court
order, a defendant may move to dismiss the action or any claim against it.” Fed. R. Civ. P.
41(b); Link v. Walbash R. Co., 370 U.S. 626, 629-31 (1962). “This measure is available to the
district court as a tool to effect management of its docket and avoidance of unnecessary burdens
on the tax-supported courts and opposing parties.” Knoll v. AT & T, 176 F.3d 359, 63 (6th Cir.
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1999). Furthermore, “it is well-settled that the district court can enter a sua sponte order of
dismissal under Rule 41(b).” Rogers v. City of Warren, 302 F. App’x. 371, 375 n.1 (6th Cir.
2008).
The United States Court of Appeal for the Sixth Circuit directs the district courts to
consider the following four factors in deciding whether to dismiss an action for failure to
prosecute under Rule 41(b):
(1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether
the adversary was prejudiced by the dismissed party’s conduct; (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.
Schafer v. City of Defiance Police Dept., 529 F.3d 731, 737 (6th Cir. 2008) (quoting Knoll, 176
F.3d at 363). “Although typically none of the factors is outcome dispositive, . . . a case is
properly dismissed by the district court where there is a clear record of delay or contumacious
conduct.” Schafer, 529 F.3d at 737 (quoting Knoll, 176 F.3d at 363).
III.
Here, the record demonstrates such delay and contumacious conduct. After Plaintiffs
failed to comply with the Court’s February 13, 2015 Order, the Court ordered Plaintiffs to either
amend their Complaint to correct its deficiencies or to show cause why this case should not be
dismissed with prejudice for want of prosecution. Both the February 13, 2015 Order and the
April 2, 2015 Show Cause Order provided Plaintiffs with adequate notice of the Court’s
intention to dismiss for failure to prosecute if they did not comply and supplied them with a
reasonable period of time to do so. The April 2, 2015 Show Cause Order also provided Plaintiffs
with an opportunity to show cause and explain why this case should not be dismissed with
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prejudice for want of prosecution. Because Plaintiffs have continuously missed deadlines and
disregarded Court Orders, the Undersigned concludes that no alternative sanction would protect
the integrity of the pretrial process. The Undersigned therefore RECOMMENDS that the Court
DISMISS Plaintiffs’ action under Rule 41(b).
Additionally, to date, Plaintiff Nameth has not complied with the Court’s January 28,
2015 Order to pay the $40.00 filing fee. Accordingly, for this additional reason, it is
RECOMMENDED that Plaintiff Nameth’s claims be DISMISSED WITH PREJUDICE for
want of prosecution.
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
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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 omitted)).

Date: April 30, 2015

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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