Hyde v. McAllister et al

Filing 35

REPORT AND RECOMMENDATION re 3 Complaint, 7 Amended Complaint: It is RECOMMENDED that the Court DISMISS Plaintiff's action WITHOUT PREJUDICE pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute. Objections to R&R due by 4/28/2016. Signed by Magistrate Judge Elizabeth Preston Deavers on 4/11/2016. (mas)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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

TAD JASON HYDE,
Plaintiff,
Civil Action 2:15-cv-176
Judge Michael H. Watson
Magistrate Judge Elizabeth P. Deavers

v.

OFFICER JEFF MCALLISTER, et al.,
Defendants.

REPORT AND RECOMMENDATION
On March 21, 2016, the Undersigned issued an Order and Report and Recommendation
recommending dismissal of Plaintiff’s injunctive relief claims without prejudice as moot and
ordering Plaintiff to file a notice with the Court within fourteen days indicating whether he
intends to prosecute the remaining claims in this action. (ECF No. 33.) For the reasons that
follow, it is RECOMMENDED that the Court DISMISS Plaintiff’s action WITHOUT
PREJUDICE pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute.
I.
On October 5, 2015, Defendants moved for dismissal of this action for failure to state a
claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 26.) Despite seeking and
obtaining an extension of time to file a memorandum in opposition to Defendants’ Motion to
Dismiss, Plaintiff failed to oppose Defendants’ Motion. (ECF Nos. 30 and 31.)
Because Plaintiff had transferred institutions, the Undersigned issued an Order and
Report and Recommendation on March 21, 2016, recommending dismissal of Plaintiff’s

injunctive relief claims without prejudice as moot. (ECF No. 33.) The Court also ordered
Plaintiff to file a notice with the Court within fourteen days indicating whether he intended to
prosecute the remaining claims in this action. The Undersigned explicitly cautioned Plaintiff as
follows: “Plaintiff is advised that failure to timely file a notice could result in dismissal of this
action without prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure
41(b).” (Id. at 5.) To date, Plaintiff has not filed a notice as directed.
The Court did, however, receive a returned envelope reflecting that the March 21, 2016
Order and Report and Recommendation had been returned as undeliverable. (ECF No. 34.) An
offender search on the Ohio Department of Rehabilitation and Correction’s (“ODRC”) website,
reveals that Plaintiff has been released from prison to community supervision. ODRC Offender
Search Detail, www.drc.ohio.gov/offendersearch/
details.aspx?id=A679882. Plaintiff has not updated his address with the Court, and his present
address is not listed on the ODRC website.
II.
Under the circumstances presented in the instant case, the Undersigned recommends
dismissal of Plaintiff’s action pursuant to Rule 41(b). The Court’s inherent authority to dismiss a
plaintiff’s action because of his or her failure to prosecute is expressly recognized in Rule 41(b),
which authorizes involuntary dismissal for failure to prosecute or to comply with rules of
procedure or court orders. See Fed. R. Civ. P. 41(b); Chambers v. Nasco, Inc., 501 U.S. 32, 49
(1991) (noting that “a federal district court has the inherent power to dismiss a case sua sponte
for failure to prosecute” as recognized in Link v. Walbash R. Co., 370 U.S. 626, 629–32 (1962)).
“This measure is available to the district court as a tool to effect management of its docket and

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avoidance of unnecessary burdens on the tax-supported courts and opposing parties.” Knoll v.
AT & T, 176 F.3d 359, 63 (6th Cir. 1999).
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 Dep’t., 529 F.3d 731, 737 (6th Cir. 2008) (citing 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).
Here, Plaintiff failed to file a memorandum in opposition to the Defendants’ Motion to
Dismiss and subsequently failed to comply with the Court’s Order that he file a notice indicating
whether he intended to pursue the remaining claims in this action. The Court’s March 21, 2016
Order and Report and Recommendation provided Plaintiff with adequate notice of the Court’s
intention to dismiss for failure to prosecute should he fail to timely file the ordered notice. The
Court supplied him with a reasonable period of time to comply. Because Plaintiff has 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 Plaintiff’s action WITHOUT PREJUDICE under Rule 41(b).
The Court notes that Plaintiff’s failure to receive filings in the instant action because he
failed to update his address with the Court does not excuse his noncompliance with Court orders.

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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.”).
III.
In sum, for the reasons set forth above, it is RECOMMENDED that this Court
DISMISS Plaintiff’s action WITHOUT PREJUDICE pursuant to Rule 41(b).
IV.

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

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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 omitted)).

Date: April 11, 2016

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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