Betters v. Warden Franklin County Correction Center

Filing 4

REPORT AND RECOMMENDATION: Magistrate Judge RECOMMENDS dismissing Plaintiff's action with prejudice for failure to prosecute. Objections to R&R due by 9/29/2017. Signed by Magistrate Judge Elizabeth Preston Deavers on 9/15/2017. (ew)(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

SERGIO BETTERS,
Plaintiff,
Case No. 2:17-cv-17
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Elizabeth P. Deavers

v.

WARDEN FRANKLIN
COUNTRY CORRECTION
CENTER,
Defendant.

REPORT AND RECOMMENDATION
This matter is before the Court on Plaintiff’s failure to comply with the Court’s January
30, 2017 and May 2, 2017 Deficiency Orders. (ECF Nos. 2, 3.) For the reasons that follow, it is
RECOMMENDED that the Court DISMISS Plaintiff’s action WITH PREJUDICE pursuant
to Federal Rule of Civil Procedure 41(b) for failure to prosecute.
I.
On January 30, 2017, the Undersigned issued an Order, ordering Plaintiff to submit the
$5 filing fee, or alternatively, a complete application for leave to proceed in forma pauperis.
On May 2, 2017, the Undersigned issued a Show Cause Order, directing Plaintiff to correct the
deficiency or pay the full filing fee within thirty (30) days of the Order and warned Plaintiff that
a failure to timely comply would result in dismissal for failure to prosecute. (ECF No. 3.)
Plaintiff failed to comply with the May 2, 2017 Order.

Plaintiff has not cured any deficiencies in his in forma pauperis application at this time,
or otherwise responded to the May 2, 2017 Show Cause Order.
II.
Under the circumstances presented in the instant case, the Undersigned recommends
dismissal of Plaintiff’s action with prejudice 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 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.’” Id. (quoting Knoll, 176 F.3d at 363).
III.

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Here, the record demonstrates such delay. After Plaintiff failed to properly apply for
leave to proceed in forma pauperis, the Court ordered him to cure his deficiencies within sixty
(60) days unless he paid the full filing fee in the interim. The Court gave him another chance by
ordering him yet again to cure his deficiencies on May 2, 2017, and giving him another thirty
(30) days to do so. These Orders provided Plaintiff with adequate notice of the Court’s intention
to dismiss for failure to prosecute and supplied him with a reasonable period of time to comply.
Nevertheless, Plaintiff has failed to cure deficiencies in his application for leave to proceed in
forma pauperis. 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 WITH PREJUDICE under 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
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that Afailure to object to the magistrate
judge=s recommendations constituted a waiver of [the defendant=s] ability to appeal the district

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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[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)).
IT IS SO ORDERED.

Date: September 15, 2017

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

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