Mahe v. Ransome et al

Filing 6

REPORT AND RECOMMENDATION: re 3 MOTION for Leave to Proceed in forma pauperis; 4 MOTION for Leave to Proceed in forma pauperis and 1 MOTION for Preliminary Injunction filed by Jason A. Mahe. It is RECOMMENDED that the Court dismiss this ca se without prejudice for failure to prosecute under Rule 41(b). Objections to R&R due by 1/24/2022. Signed by Magistrate Judge Elizabeth Preston Deavers on January 10, 2022. (jlk) (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
JASON A. MAHE,
Plaintiff,
Civil Action 2:21-cv-5192
Judge Sarah D. Morrison
Magistrate Judge Elizabeth P. Deavers

v.
KATRINA RANSOME, et al.,
Defendants.

REPORT AND RECOMMENDATION
On November 2, 2021, Plaintiff, Jason A. Mahe, currently incarcerated in the Northern
Nevada Correctional Center in Carson City, Nevada, filed a document captioned as a
“Preliminary Injunction to Enforce ‘Post Release Control’ and/or ‘Parole’ Time Concurrent with
Remaining NDOC Time.” (ECF No. 1.) Plaintiff’s Motion was unaccompanied by any initiating
documents, i.e., either a Complaint or a Petition for a Writ of Habeas Corpus. Further, Plaintiff
failed either to pay any requisite filing fee or to file an application for leave to proceed in forma
pauperis. On November 4, 2021, the Court directed Plaintiff to submit, within thirty (30) days of
the date of that order, the appropriate initiating document accompanied by either the applicable
filing fee ($402.00 for a civil Complaint or $5.00 for a Petition for a Writ of Habeas Corpus) or
alternatively, an application for leave to proceed in forma pauperis. (ECF No. 2.) The Order
advised Plaintiff that his failure to comply may result in the dismissal of the case for want of
prosecution. (Id. at 2.)
On November 22, 2021, Plaintiff filed two documents – a motion for leave to proceed in
forma pauperis and another filing seeking “to proceed ifp and overlook copy error.” (ECF Nos.
1

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3 and 4). Contrary to the Court’s previous Order, neither of these filings was accompanied
by an appropriate initiating document. Moreover, the application for leave to proceed in forma
pauperis was deficient because it did not contain an appropriate trust fund account statement as
required by 28 U.S.C. § 1915. Accordingly, on November 23, 2021, the Court granted Plaintiff
an additional thirty days to cure these deficiencies. (ECF No. 5.) The Order advised Plaintiff
that his failure to comply would result in a recommendation of dismissal for want of prosecution.
(Id. at 3.) To date, Plaintiff has not filed a Complaint1 or a properly supported application to
proceed in forma pauperis.
The Court’s inherent authority to dismiss a plaintiff’s action with prejudice because of his
or her failure to prosecute is expressly recognized in Rule 41(b), which authorizes involuntary
dismissal for failure to prosecute or to comply with rules of procedure or court orders. See Fed.
R. Civ. P. 41(b); Chambers v. Nasco, Inc., 501 U.S. 32, 49, 111 S.Ct. 2123, 115 L.Ed.2d 27
(1991) (noting that “a federal district court has the inherent power to dismiss a case sua sponte
for failure to prosecute” as recognized in Link v. Walbash R. Co., 370 U.S. 626, 629–32, 82 S.Ct.
1386, 8 L.Ed.2d 734 (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, 63 (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
1

Plaintiff’s deficient in forma pauperis application (ECF No. 3 at 5; PAGEID#: 21) indicated his
intention to pursue a civil rights action and not a habeas corpus action. As a result, Plaintiff was
advised of his obligation to submit a Complaint and service documents for each Defendant in
order to comply with the Court’s previous Order. (ECF No.5 at 2.)
2

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(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).
Plaintiff has failed to file a Complaint or a properly supported application for leave to
proceed in forma pauperis as twice ordered by the Court. Indeed, Plaintiff has not responded to
the Court’s most recent Order in any way. Further, Plaintiff has been advised that his failure to
do so could result in the dismissal of this action. (ECF Nos. 2, 5.) Accordingly, it is
RECOMMENDED that the Court dismiss this case without prejudice for failure to prosecute
under Rule 41(b).
PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review of by the District Judge
and waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l
Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the
magistrate judge’s recommendations constituted a waiver of [th defendant’s] ability to appeal the
3

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district court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .” (citation
omitted)).

Date: January 10, 2022

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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