Galvan v. Franklin County Sheriff Department

Filing 10

REPORT AND RECOMMENDATION: It is RECOMMENDED that Plaintiff's action be DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute. It is further RECOMMENDED that the Court not ass ess the filing fee in this matter. Finally, it is RECOMMENDED that the Court order Plaintiff to list 2:17-cv-1053 as a related case if he re-files this action. Objections to R&R due by 5/29/2018. Signed by Magistrate Judge Chelsey M. Vascura on 5/15/2018. (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

ARTURO GALVAN,
Plaintiff,
Civil Action 2:17-cv-1053
Judge George C. Smith
Magistrate Judge Chelsey M. Vascura

v.

FRANKLIN COUNTY SHERIFF
DEPARTMENT, et al.,
Defendants.

REPORT AND RECOMMENDATION
This matter is before the United States Magistrate Judge for a Report and Recommendation
on the Court’s April 11, 2018 Order and Third Notice of Deficiency where the Court directed
Plaintiff to pay the filing fee or submit proper documentation showing he is unable to pay the fee.
(ECF No. 4.) 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 filed this action on December 6, 2017. (ECF No. 1.) Because Plaintiff had not
paid the filing fee, he was ordered to either pay the $400 filing fee or submit an application to
proceed in forma pauperis under § 1915(a), including the required affidavit and certified trust fund
statement from his prison’s cashier. (January 3, 2017 Order, ECF No. 2.) Plaintiff was also
cautioned that failure to comply with the Court’s Order would result in dismissal of his case. (Id.)
Plaintiff filed an Application to Proceed In Forma Pauperis on January 22, 2018. (ECF

No. 3.) However, this application failed to comply with the Court’s previous instructions. As
the Court indicated in its Second Deficiency Order (ECF No. 4), Plaintiff failed to include a
certified copy of his prison trust fund account statement. (Id. at 2.) In its September 25, 2017
Order, the Court directed Plaintiff to “either (1) pay the $400 filing and administrative fee; or (2)
comply with this Second Notice of Deficiency by filing a completed and signed certified copy of
the prison trust fund account statement ON OR BEFORE FEBRUARY 25, 2018.” (January 25,
2018 Order 2, ECF No. 4.) The Court again cautioned Plaintiff that failure to comply with its
Order would result in dismissal of the case for want of prosecution. (Id.)
Plaintiff filed a second Application to Proceed In Forma Pauperis on February 26, 2018.
(ECF No. 5). Plaintiff’s documentation remained deficient because he failed to include the
required statement of account showing the previous six months of transactions. Moreover, the
documentation that was attached to Plaintiff’s Application indicated that he had a balance of
$3,288.48 in his account as of February 11, 2018. Because Plaintiff’s documentation was both
deficient and indicated that he could pay the filing fee, the Court directed him to “either pay the
Court’s $400.00 filing fee or submit the proper documentation showing that he is unable to pay the
fee WITHIN THIRTY DAYS.” (April 11, 2018 Order 2, ECF No. 9.) The Court again
cautioned Plaintiff that failure to comply with its Order would result in dismissal of the case for
want of prosecution. (Id.)
To date, Plaintiff has failed to comply with the Court’s April 11, 2018 Order. He has
neither paid the filing fee nor submitted proper documentation showing that he is unable to pay the
fee.
II.
Under the circumstances presented in the instant case, the Undersigned recommends
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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 to 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. Walbash 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) (internal citations omitted).
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.’”
Schafer, 529 F.3d at 737 (quoting Knoll, 176 F.3d at 363).
III.
Here, Plaintiff has failed to comply with three separate Court Orders instructing him to
either pay the $400 filing fee or submit a signed affidavit accompanied by a completed certified
prisoner trust fund statement. (See ECF Nos. 2 & 4.) Moreover, the Court explicitly cautioned

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Plaintiff in all three Orders 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 the lack thereof, is . . . a key consideration” in whether
dismissal under rule 41(b) is appropriate). Plaintiff’s failure to timely comply with the clear
orders 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. Nevertheless, the Undersigned concludes that dismissal with
prejudice and requiring Plaintiff to pay the filing fee is too harsh a result.
It is therefore RECOMMENDED that the Court DISMISS THIS ACTION WITHOUT
PREJUDICE under Rule 41(b). It is further RECOMMENDED that the Court not assess the
filing fee in this matter. Finally, it is RECOMMENDED that the Court order Plaintiff to list
2:17-cv-1053 as a related case if he re-files this action.
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

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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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