Rittenberry v. Parnell et al

Filing 9

ORDER adopting 6 the Report and Recommendation. Signed by Judge Michael H. Watson on 12/6/17. (jk) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION Joshua A. Rittenberry, Plaintiff, V. Case No. 2:17-cv-804 Officer Parneli, et al.. Judge Michaei H. Watson Defendants. Magistrate Judge Vascura ORDER Plaintiff filed a complaint with jury demand but failed to pay the filing fee or move for leave to proceed in forma pauperis, prompting Magistrate Judge Vascura to issue an Order and Notice of Deficiency, EOF No. 2. Plaintiff responded to the Order by moving for leave to proceed in forma pauperis, but that motion was likewise deficient in that the affidavit in support of the motion was unsigned, and the motion did not include the requisite certified copy of Plaintiffs prison trust fund account statement. Magistrate Judge Vascura therefore issued a second Order and Notice of Deficiency, EOF No. 4. Both Orders warned Piaintiff that a failure to timely comply with the same wouid resuit in dismissal of the case for want of prosecution. EOF Nos. 2, 4. Still, Plaintiff failed to comply. Thus, on November 2, 2017, Magistrate Judge Vascura issued a Report and Recommendation ("R&R") recommending the Court dismiss Plaintiffs case for faiiure to prosecute pursuant to Federai Rule of Civil Procedure 41(b). R&R, ECF No. 6. She recommended, however, that the Court dismiss the case without prejudice and that the Court not assess the filing fee in this matter. Id. at 4. The R&R notified the parties of their right to object and specifically warned that a failure to timely object would result in waiver of the right to de novo review by the Undersigned as well as a waiver of the right to appeal the decision of the Undersigned adopting the R&R. Id. In response to the R&R, Plaintiff filed a notice stating that the prison cashier refused to process his cashier statement and he was thus unable to submit the required certified copy of his prison trust fund account statement due to circumstances beyond his control. Notice, ECF No. 7. Plaintiff later submitted a certified copy of his prison trust fund account statement. ECF No. 8. Plaintiff did not, however, submit a signed affidavit in support of his motion for leave to proceed In forma pauperls, nor did he timely object to the R&R. Accordingly, the Court ADOPTS the R&R, DISMISSES this case WITHOUT PREJUDICE, and DIRECTS the Clerk not to assess a filing fee in this case. Finally, Plaintiff is ORDERED to list 2:17-cv-804 as a related case if he refiles this action. IT IS SO ORDERED. MICHAEL H. WATSON, JUDGE UNITED STATES DISTRICT COURT

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