Bryant v. Warden, Franklin County Corrections Center II
REPORT AND RECOMMENDATIONS: It is RECOMMENDED that this action be sua sponte DISMISSED pursuant to Rule 41(b) for failure to prosecute re 1 , 4 Petition for Writ of Habeas Corpus filed by Shaun Bryant. Objections to R&R due by 12/18/2017. Signed by Magistrate Judge Elizabeth Preston Deavers on December 4, 2017. (jlk)(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
CASE NO. 2:17-CV-00335
JUDGE JAMES L. GRAHAM
Magistrate Judge Elizabeth P. Deavers
WARDEN, FRANKLIN COUNTY
REPORT AND RECOMMENDATION
This matter is before the Court after Petitioner failed to comply with this Court’s Order
directing him to provide his current address. (ECF No. 7.) For the following reasons, the
Undersigned RECOMMENDS that this action be sua sponte DISMISSED pursuant to Rule
41(b) of the Federal Rules of Civil Procedure (“Rule 41(b)”) for failure to prosecute.
Petitioner, an Ohio inmate, executed a pro se petition on April 19, 2017. (ECF No. 1.) In
it, he asserts that the Municipal Court for Franklin County, Ohio, violated his Due Process rights
by denying a motion to withdraw a plea of “no contest” to assault charges filed against Petitioner
by Franklin County. (Id.) The petition, however, lacked identifying information for the
Municipal Court case or details about Petitioner’s sentence. Accordingly, on October 23, 2017,
this Court issued an Order directing Petitioner to provide the Court with more information. (ECF
No. 5.) That Order was mailed to Petitioner at his last known address at the Franklin County
Corrections Center but subsequently returned as undeliverable. (ECF No. 6.) On November 9,
2017, the Court issued a second Order directing Petitioner to provide the Court with his current
address. (ECF No. 7.) The second Order cautioned Petitioner that failure to provide a current
address would result in dismissal of his action for failure to prosecute. (Id.) The second Order
was also mailed to Petitioner’s last known address and subsequently returned as undeliverable.
To date, Petitioner has not provided the Court with information about the Municipal Court case
brought against him in Franklin County or a current address.
A litigant has an affirmative duty to notify the court of any change in his 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, he had an affirmative duty to supply the court with notice of any
and all changes in her address.”); see also Hardin v. Chandler, 36 Fed. App’x 769, 770 (6th Cir.
2002) (citing Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991) (explaining that although pro se
litigants are afforded latitude when dealing with complex 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,
Petitioner demonstrates a lack of prosecution of this action.”)
A litigant’s failure to supply the Court with an updated address subjects the action to
dismissal under Rule 41(b). Fed. R. Civ. P. 41(b) (providing for dismissal where “the plaintiff
fails to prosecute . . . .”); see also Kosher v. Butler Cnty. Jail, No. 1:12-cv-51, 2012 WL
4808546, *2 (S.D. Ohio Sept. 9, 2012) (citing Buck v . U.S. Dep’t of Agriculture, Farmers Home
Admin., 960 F.2d 603, 608–09 (6th Cir. 1992)) (“without such basic information as a Plaintiff’s
current address, courts have no recourse but to dismiss a complaint for failure to prosecute.”)
(Report and Recommendation adopted). “When contemplating dismissal of an action under Rule
41(b), a court must consider: (1) whether the party’s failure to cooperate is due to willfulness,
bad faith, or fault; (2) whether the adversary was prejudiced by the dilatory conduct of the party;
(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.”
Stough v. Mayville Comty Schs., 138 F.3d 612, 615 (6th Cir. 1998)); see also Sullivan v. Waffle
House, No. 1:06-cv-63, 2006 WL 3007360 (E.D. Tenn. Oct. 19, 2006) (applying four-part
inquiry to a plaintiff’s failure to update his address); Fountain v. Warden, Franklin Med. Ctr.,
No. 2:13-cv-271, 2013 WL 246836 (S.D. Ohio June 7, 2013) (same) (Report and
Applying this four-part inquiry to Petitioner’s failure to provide his current address after
being ordered to do so, the Undersigned concludes that dismissal for failure to prosecute is
appropriate. First, Petitioner’s failure to update his address constitutes willfulness, bad faith, or
fault, because it demonstrate reckless disregard for how his actions, or inactions, impact his case.
See Wu v. T.W. Tang, Inc., 420 F. 3d 641, 643 (6th Cir. 2005) (“For a plaintiff’s actions to be
motivated by bad faith, willfulness or fault, his conduct must display either an intent to thwart
judicial proceedings or a reckless disregard for the effect of his conduct on those proceedings”);
see also Fountain, 2013 WL 2468361, at * 2 (citing Sullivan, 2006 WL 3007360, at *2 (finding
that a plaintiff’s failure to update his address exhibited reckless disregard for the effect of his
conduct on the proceedings)). Petitioner has deprived this Court of a means to contact him
about his case or a method to notify him when motions or other proceedings require his response
Second, the record does not establish that Respondent has been prejudiced by delay. The
Court notes that unnecessary delay could prejudice Respondent, particularly given Petitioner’s
failure to provide critical details about the Municipal Court case that is the subject of the claims
alleged in his petition, but nonetheless finds that this second factor applies neutrally at this time.
Third, the Court’s second Order explicitly stated that Petitioner’s failure to update his
address would result in dismissal of this action. Although that second Order was returned as
undeliverable, the Court nevertheless attempted to warn Petitioner that his conduct would result
in a dismissal. See Sullivan, 2006 WL 3007360, at * 2 (dismissing action even though the
Court’s warnings did not reach the plaintiff due to his failure to update his address); Fountain,
2013 WL 2468361, at *2 (same).
Last, the Undersigned concludes that there is no sanction less drastic than dismissal that
would be appropriate under the circumstances. Any other sanction that the Court might impose
would not reach Petitioner because he has left the Court with no means of contacting him. See
Sullivan, 2006 WL 3007360, at * 2 (“[E]ven if the Court were to implement sanctions less
drastic than dismissal, the case would remain stalled due to the Court’s inability to communicate
with Plaintiff.”); Fountain, 2013 WL 2468361, at *2 (same).
In light of these factors, the Undersigned concludes that dismissal is an appropriate
For the reasons set forth herein, it is RECOMMENDED that this action be sua sponte
DISMISSED pursuant to Rule 41(b) for failure to prosecute.
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. Natl Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that failure to object to the magistrate
judges recommendations constituted a waiver of [the defendants] ability to appeal the district
courts ruling); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district courts denial of pretrial motion by failing to timely object to
magistrate judges 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 judges 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: December 4, 2018
s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge
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