McCain v. Jenkins et al

Filing 140

ORDER AND ENTRY: (1) VACATING THE APRIL 18, 2019 REPORT AND RECOMMENDATION (DOC. 138 ); (2) ORDERING PLAINTIFF TO FILE OPPOSITIONS TO DEFENDANTS DISPOSITIVE MOTIONS ON OR BEFORE JUNE 3, 2019; (3) DIRECTING THE CLERK TO MAIL BY CERTIFIED MAIL THE DOC KET SHEET IN THIS CASE AND ALL FILINGS IN THIS CASE SINCE THE BEGINNING OF 2019; AND (3) DENYING IN ALL OTHER RESPECTS PLAINTIFFS MOTION FOR STAY OR EXTENSION OF TIME (DOC. 139 ). Signed by Magistrate Judge Michael J. Newman on 5/1/19. (kma)(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
MICHAEL D. MCCAIN, SR.,
Plaintiff,

Case No. 2:15-cv-1262

vs.
CHAROLETTE JENKINS, et al.,

District Judge Michael H. Watson
Magistrate Judge Michael J. Newman

Defendants.
______________________________________________________________________________

ORDER AND ENTRY: (1) VACATING THE APRIL 18, 2019 REPORT AND
RECOMMENDATION (DOC. 138); (2) ORDERING PLAINTIFF TO FILE
OPPOSITIONS TO DEFENDANTS’ DISPOSITIVE MOTIONS ON OR BEFORE JUNE
3, 2019; (3) DIRECTING THE CLERK TO MAIL BY CERTIFIED MAIL THE DOCKET
SHEET IN THIS CASE AND ALL FILINGS IN THIS CASE SINCE THE BEGINNING
OF 2019; AND (3) DENYING IN ALL OTHER RESPECTS PLAINTIFF’S MOTION
FOR STAY OR EXTENSION OF TIME (DOC. 139)
______________________________________________________________________________
This civil case is before the Court on pro se Plaintiff’s motion for a stay of proceedings or,
alternatively, an extension of time to respond to the Court’s April 18, 2019 Report and
Recommendation in which the undersigned recommends that this case be dismissed as a result of
Plaintiff’s failure to prosecute. Doc. 139. In that Report and Recommendation, the undersigned
noted Plaintiff’s failure to file a memorandum in opposition to Defendants’ motion for judgment
on the pleadings (doc. 95), a memorandum in opposition to Defendants’ motion for summary
judgment (doc. 110), and responses to the undersigned’s Show Cause Orders (docs. 128, 137).
In his motion, Plaintiff asserts that he never received copies of the Court’s Show Cause
Orders and that he sent a 112-page opposition and cross-motion for summary judgment for filing
in December 2018. Id. While Defendants received a copy of Plaintiff’s 112-page motion and
opposition (doc. 130), as previously noted by the undersigned, the Court did not. Doc. 137.
Instead, the Court received only the following documents from Plaintiff: (1) numerous affidavits

executed by Plaintiff; (2) other exhibits, such as written grievances; and (3) eight select pages
(pages 51, 62-67, and 112) of the 112-page motion and opposition memorandum. The undersigned
struck Plaintiff’s filing because no complete memorandum was filed and because, to the extent
Plaintiff intended to file a 112-page motion and opposition, it would violate the 20-page limitation
set forth by the Court’s Local Rules. Doc. 137.
Having not received a complete copy of Plaintiff’s motion or opposition, the undersigned
issued two Show Cause Orders (docs. 128, 137) directing Plaintiff to either (1) show cause as to
why the case should not be dismissed for failure to prosecute; or (2) file appropriate opposition
memoranda. Again, Plaintiff asserts that he did not receive copies of either Show Cause Order nor
a number of other documents filed with the Court. Doc. 139. Having received no response or
memoranda from Plaintiff, the undersigned issued the aforementioned Report and
Recommendation, the only document Plaintiff has allegedly received from the Court since
December 2018.1 Doc. 138.
Giving Plaintiff the benefit of the doubt, and noting the Court’s preference for resolving
cases on their merits, the undersigned VACATES the Report and Recommendation dated April
18, 2019 (doc. 138). Plaintiff is ORDERED to file memoranda in opposition to Defendants’
motion for judgment on the pleadings (doc. 95) and motion for summary judgment (doc. 110) on
or before June 3, 2019. In combined total, Plaintiff’s opposition memoranda, exclusive of
attachments and exhibits) shall not exceed 50 pages. The undersigned NOTIFIES Plaintiff that
his failure to file opposition to Defendants’ motions on or before June 3, 2019 will result in the
dismissal of this case for failure to prosecute.

The docket reflects that each of the Court’s Orders and R&Rs were mailed to Plaintiff by the
Clerk of Courts.
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The Clerk of Court is ORDERED to mail to Plaintiff by certified mail at his address of
record (1) a copy of the docket sheet in this case, (2) a copy of this Order, and (3) copies of
documents filed in this case since the beginning of 2019 (docs. 127-139). To the extent Plaintiff’s
motion for stay or an extension of time requests relief not provided for in this Order, such motion
is DENIED.
IT IS SO ORDERED.

Date:

May 1, 2019

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

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