Fox v. Manager
REPORT AND RECOMMENDATION re 3 Complaint filed by Gary Raymond Fox. It is RECOMMENDED that Plaintiff's action be DISMISSED WITH 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
GARY RAYMOND FOX,
Civil Action 2:17-cv-880
Judge Algenon L. Marbley
Magistrate Judge Chelsey M. Vascura
In Town Motel Suites,
REPORT AND RECOMMENDATION
This matter is before the United States Magistrate Judge for a Report and Recommendation
on the Court’s October 11, 2017 Order directing Plaintiff to pay the filing fee or submit a
completed in forma pauperis affidavit. (ECF No. 2.) For the reasons that follow, it is
RECOMMENDED that Plaintiff’s action be DISMISSED WITH PREJUDICE pursuant to
Federal Rule of Civil Procedure 41(b) for failure to prosecute.
Plaintiff filed this action on October 10, 2017. (ECF No. 1.) Plaintiff had neither paid
the filing fee nor submitted the required materials in support of his application to proceed in forma
pauperis, thus he was ordered to either pay the fee or submit a completed affidavit within thirty
days. (Oct. 11, 2017 R&R, ECF No. 2.) That Order further advised Plaintiff “that failure to
timely comply with the Order could result in dismissal of this action for failure to prosecute.”
To date, Plaintiff has failed to pay the filing fee or submit a completed affidavit.
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 with prejudice because of his failure to prosecute is expressly recognized in Rule
41(b), which provides in pertinent part: “If the plaintiff fails to prosecute or comply with these
rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless
the dismissal order states otherwise, a dismissal under this subdivision (b) . . . operates as an
adjudication on the merits.” Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 629–
31 (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, 363 (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 Dept., 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.’”
Schafer, 529 F.3d at 737 (quoting Knoll, 176 F.3d at 363).
Here, Plaintiff has not complied 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 for failure to
prosecute pursuant to Rule 41(b). 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 a Court order, the Undersigned concludes that no alternative sanction would protect
the integrity of the pretrial process.
It is therefore RECOMMENDED that the Court DISMISS THIS ACTION under Rule
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made, together with supporting
authority for the objection(s). A Judge of this Court shall make a de novo determination of those
portions of the Report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a Judge of this Court may accept, reject, or modify, in whole or in
part, the findings or recommendations made herein, may receive further evidence or may
recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE
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