Sears v. Wheeling Hospital et al

Filing 9

REPORT AND RECOMMENDATION - re 4 MOTION for Leave to Proceed in forma pauperis (The following document(s) were not submitted to the Office of the Clerk: c) filed by Scott A. Sears. The Undersigned RECOMMENDS Plaintiff's motion for leave to pro ceed in forma pauperis (Doc. 4) be DENIED and this case be DISMISSED for want of prosecution. Objections to R&R due by 3/3/2021. Signed by Magistrate Judge Kimberly A. Jolson on 02/17/2021. (mdr)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 2:20-cv-06276-ALM-KAJ Doc #: 9 Filed: 02/17/21 Page: 1 of 4 PAGEID #: 36

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

SCOTT A. SEARS,
Case No. 2:20-cv-6276
Chief Judge Algenon L. Marbley
Magistrate Judge Kimberly A. Jolson

Plaintiff,
v.
WHEELING HOSPITAL, et al.,
Defendants.

REPORT AND RECOMENDATION
This matter is before the Court on the February 1, 2021, Show Cause Order. (Doc. 8). In
accordance with the following discussion, the Undersigned RECOMMENDS Plaintiff’s motion
for leave to proceed in forma pauperis (Doc. 4) be DENIED and this case be DISMISSED for
want of prosecution.
I.

BACKGROUND
Plaintiff filed his complaint on December 8, 2020, without the required filing fee or motion

for leave to proceed in forma pauperis. (Doc. 1). Following a deficiency notice from the Clerk
(Doc. 3), Plaintiff filed the instant motion for leave to proceed in forma pauperis under 28 U.S.C.
§ 1915(a). (Doc. 4). Upon review of that motion, the Undersigned was unable to determine how
Plaintiff supported himself and ordered him to submit a revised motion to proceed without
prepayment of fees.

(Doc. 7).

After Plaintiff failed to file any such revised motion, the

Undersigned afforded Plaintiff ten (10) days to either submit a revised motion, or to otherwise
show cause why he cannot provide such information. (Doc. 8). In that Order, the Undersigned
noted that failure to comply could result in a recommendation that this case be dismissed for want

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of prosecution pursuant to Federal Rule of Civil Procedure 41. (Id.). As of the date of this Report
and Recommendation, Plaintiff has not responded to the show cause order.
II.

DISCUSSION
First, Plaintiff has failed to meet the standard governing a motion to proceed in forma

pauperis. The Supreme Court, in Adkins v. E.I. DuPont de Nemours & Co., Inc., set forth the legal
standard applicable to a motion to proceed in forma pauperis. 335 U.S. 331 (1948). An affidavit
of poverty is sufficient if it reflects that the plaintiff cannot pay the Court’s filing fee without
depriving himself the “necessities of life.” Id. at 339 (internal quotation marks omitted). Although
the plaintiff need not be totally destitute in order to proceed in forma pauperis, paying the filing
fee must be more than a mere hardship. See Foster v. Cuyahoga Dep’t of Health & Human Servs.,
21 F. App’x 239, 240 (6th Cir. 2001) (noting that “the question is whether the court costs can be
paid without undue hardship”). Consequently, unless it is clear that the one-time payment of the
Court’s filing fee will render the plaintiff unable to provide for himself, the Court cannot grant
him in forma pauperis status. See Adkins, 335 U.S. at 339.
In his affidavit, Plaintiff represents that he has been unemployed since 2018 and that he
has not received any income from any other source in the past year. (Doc. 4 at 2–3). Furthermore,
he represents that he has no monthly expenses. (Id.). As it currently stands, Plaintiff’s affidavit
does not reflect that he cannot pay the Court’s filing fee without depriving himself the “necessities
of life.” Adkins, 335 U.S. at 339.
Second, given Plaintiff’s repeated failures to cure the deficiencies in his motion to proceed
in forma pauperis, dismissal of this matter for failure to prosecute is appropriate. The Court may
dismiss an action for failure to prosecute under its inherent power to control its docket, see Link v.
Wabash R.R. Co., 370 U.S. 626, 629 (1962), or under Rule 41(b) of the Federal Rules of Civil

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Procedure. Rule 41(b) provides, in pertinent part that “[i]f 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.” The measure is available to the 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 court 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).
Since filing this action in December, Plaintiff has repeatedly failed to comply with this
Court’s orders, despite the Undersigned’s repeated instruction. (See generally Docs. 7, 8). After
initially failing to pay the required filing fee, Plaintiff subsequently ignored two Court orders
requiring him to supplement his motion to proceed without prepayment of fees. (Id.). He has been
afforded well over thirty days to comply with these orders, or to show cause otherwise.
In view of the foregoing, the Undersigned concludes that Plaintiff has abandoned this
action. Although this Court has a “favored practice of reaching a disposition on the merits,” the
Court’s “need to manage its docket, the interest in expeditious resolution of litigation, and the risk

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of prejudice to the defendant” outweigh allowing this case to linger. Little v. Yeutter, 984 F.2d
160, 162 (6th Cir. 1993). Finally, the Undersigned has considered less drastic sanctions than
dismissal but concludes that any such effort would be futile given Plaintiff’s failure to participate
in these proceedings.
The Undersigned, therefore, RECOMMENDS Plaintiff’s motion for leave to proceed in
forma pauperis (Doc. 4) be DENIED and this case be DISMISSED for want of prosecution.
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).
IT IS SO ORDERED.
Date: February 17, 2021

/s/Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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