Horn v. Hunt

Filing 52

REPORT AND RECOMMENDATION that (47 in 2:15-cv-00220-JLG-TPK, 37 in 2:15-cv-03019-JLG-TPK) MOTION to Dismiss for Lack of Prosecution be granted and that Mr. Horn's claims be dismissed pursuant to Fed. R. Civ. P. 41(b). Objections to R& R due by 2/27/2017. Signed by Magistrate Judge Terence P. Kemp on 2/13/2017. Associated Cases: 2:15-cv-00220-JLG-TPK, 2:15-cv-03019-JLG-TPK (agm)(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
Charles Horn,

:

Plaintiff,

:

v.

:

Case No. 2:15-cv-220

:

JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp

Chad Hunt,
:
Defendant.
:
Aaron E. Young,

:

Plaintiff,

:
Case No. 2:15-cv-3019

v.

:

Chad Hunt,

:
Defendant.

JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp

:
REPORT AND RECOMMENDATION

These consolidated cases are prisoner civil rights cases
arising out of an alleged incident at the Correctional Reception
Center in October, 2014.

On October 25, 2016, defendant Chad

Hunt filed a motion for judgment on the pleadings.
30, 2016, he filed a motion for summary judgment.
Charles Horn did not respond to either motion.

On November
Plaintiff

Consequently, on

January 20, 2017, Mr. Hunt filed a motion to dismiss Mr. Horn’s
claims for lack of prosecution.
that motion either.

Mr. Horn has not responded to

For the following reasons, the Court will

recommend that the motion to dismiss for lack of prosecution be
granted.
According to Mr. Hunt’s current motion, Mr. Horn was
released from prison on October 10, 2016.

Since that time, Mr.

Horn has failed to provide updated contact information to the

Court or to Mr. Hunt.

Mr. Hunt has attached to his motion

various pieces of returned mail addressed to Mr. Horn at his
Lebanon Correctional Institution address.

A review of the

Court’s docket confirms Mr. Horn’s release and his failure to
provide the Court with updated information.

See Doc. 40 (“Mail

Returned as Undeliverable - Return to Sender - Released
10/10/16").
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).

“Although pro se Plaintiff’s are held to less stringent

standards than attorneys, their cases may still be subject to
dismissal if they fail to meet their readily comprehended
responsibilities before the court.”

Harkleroad v. Astrue, 2011

WL 3627161, *3 (N.D. Ohio Aug. 17, 2011), citing May v. Pike Lake
State Park, 8 Fed.Appx. 507, 508 (6th Cir. 2001).

Consequently,

“dismissal for failure to prosecute may be appropriate when a pro
se plaintiff fails to keep the court apprised of [his] current
address.”

Id., citing White v. City of Grand Rapids, 34

Fed.Appx. 210, 211 (6th Cir. 2002).
The facts of this case indicate a clear failure to
prosecute.

Four months have passed since Mr. Horn was released

from prison.

He has made no attempt to provide updated contact

information to either defense counsel or the Court in the
meantime.

Prior to his release, the last filing Mr. Horn made in

his case was a reply filed on November 23, 2015, directed to
objections filed by Mr. Hunt.
For this reason, it is recommended that the motion to dismiss
for failure to prosecute (Doc. 47) be granted and that Mr. Horn’s
claims be dismissed pursuant to Fed. R. Civ. P. 41(b).
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PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that
party may, within fourteen 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. §636(b)(1).

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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