Banks v. Song et al

Filing 5

REPORT AND RECOMMENDATION re 4 Complaint, filed by Frederick Banks. It is RECOMMENDED that Plaintiff's action be DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute. Objections to R&R due by 12/11/2017. Signed by Magistrate Judge Chelsey M. Vascura on 11/27/2017. (kpt)(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

FREDERICK BANKS,
Plaintiff,
Civil Action 2:17-cv-628
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Chelsey M. Vascura

v.

SOO SONG, et al.,
Defendants.

REPORT AND RECOMMENDATION
This matter is before the United States Magistrate Judge for a Report and Recommendation
on the Court’s October 3, 2017 Order directing Plaintiff to pay the filing fee or submit a certified
trust fund account statement from his prison’s cashier. (ECF No. 3.) For the reasons that follow,
it is RECOMMENDED that Plaintiff’s action be DISMISSED WITHOUT PREJUDICE
pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute.
I.
Plaintiff initiated this action on July 19, 2017, by filing a Motion to Proceed in forma
pauperis, but failed to include the necessary documentation for the Court to determine his financial
status. (ECF No. 1.) On July 28, 2017, the Undersigned issued a Report and Recommendation
denying Plaintiff’s In Forma Pauperis Motion without prejudice for failure to submit proper
documentation, and requiring him to either pay the Court’s filing fee or submit the proper
documentation within thirty days. (ECF No. 2.) Plaintiff failed to object to the Report and
Recommendation, and the District Court adopted it on October 3, 2017. (ECF No. 3.) Plaintiff

was directed to pay the $400 filing fee or submit the certified trust fund account statement within
thirty days. That Order further advised Plaintiff that failure to comply would result in dismissal
of the action.
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. Wabash R.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.’”

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Schafer, 529 F.3d at 737 (quoting Knoll, 176 F.3d at 363).
III.
Here, Plaintiff failed to comply with the Court’s express order that he pay the $400 filing
fee or submit a completed affidavit if he wished to proceed. Moreover, the Court explicitly
cautioned Plaintiff that failure to comply would result in dismissal of this action. See Stough v.
Mayville Cmty. Schs., 138 F.3d 612, 615 (6th Cir. 1998) (noting that “[p]rior notice, or lack
thereof, is . . . a key consideration” in whether dismissal under rule 41(b) is appropriate).
Plaintiff’s failure to timely comply with the clear Order of the Court, which established reasonable
deadlines for compliance, constitutes bad faith or contumacious conduct. See Steward v. Cty. of
Jackson, Tenn., 8 F. App’x 294, 296 (6th Cir. 2001) (concluding that a plaintiff’s failure to comply
with a court’s order “constitute[d] bad faith or contumacious conduct and justifie[d] dismissal”).
Because Plaintiff has missed deadlines and disregarded Court orders, the Undersigned concludes
that no alternative sanction would protect the integrity of the pretrial process.
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

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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 “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)).

/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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