Shipley v. Commissioner of Social Security
REPORT AND RECOMMENDATION re 4 It is therefore RECOMMENDED that the Court DISMISS THIS ACTION WITH PREJUDICE under Rule 41(b). Objections to R&R due by 5/12/2021. Signed by Magistrate Judge Chelsey M. Vascura on 4/28/21. (sem)(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
MICHAEL L. SHIPLEY,
COMMISSIONER OF SOCIAL
Civil Action 2:20-cv-955
Judge Edmund A. Sargus, Jr.
Magistrate Judge Chelsey M. Vascura
REPORT AND RECOMMENDATION
On April 2, 2021, Plaintiff, who is proceeding without the assistance of counsel, was
ordered to show cause within fourteen days why this case should not be dismissed with prejudice
for want of prosecution pursuant to Federal Rule of Civil Procedure 41(b) after Plaintiff failed to
timely file his Statement of Errors. (ECF No. 28.) Plaintiff was further cautioned that “failure to
comply with this Order will result in a dismissal of his action with prejudice.” (Id.) To date,
Plaintiff has failed to respond in any way to the Show Cause Order.
Under the circumstances presented in the instant case, the undersigned recommends
dismissal of Plaintiff’s action with prejudice pursuant to Rule 41(b). The Court’s inherent
authority to dismiss a plaintiff’s action 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
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
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).
Here, Plaintiff failed to file his Statement of Errors and failed to comply with the Court’s
Show Cause Order. (See ECF No. 28.) Moreover, the Court explicitly cautioned Plaintiff in the
Show Cause Order that failure to comply could 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
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 the Statement
of Errors deadline and disregarded the Court’s Show Cause 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 WITH
PREJUDICE under Rule 41(b).
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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