Hull v. Yost et al

Filing 16

REPORT AND RECOMMENDATION - It is RECOMMENDED that the Court DISMISS THIS ACTION WITHOUT PREJUDICE under Rule 41(b). Is 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 2:23-cv-3940 as a related case if he re-files this action. Objections to R&R due by 3/26/2025. Signed by Magistrate Judge Chelsey M. Vascura on 3/12/2025. (agm)(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
SEAIN C. HULL,
Plaintiff,
v.

Civil Action 2:23-cv-3940
Judge James L. Graham
Magistrate Judge Chelsey M. Vascura

DAVID YOST, et al.,
Defendants.

REPORT AND RECOMMENDATION
This matter is before the United States Magistrate Judge for a Report and
Recommendation on the Court’s Order of February 9, 2024. (ECF No. 6.) For the reasons that
follow, it is RECOMMENDED that this action be DISMISSED WITHOUT PREJUDICE
pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute.
Plaintiff commenced this action on November 28, 2023, indicating his intent to file a
Motion for Leave to Proceed In Forma Pauperis. (ECF No. 1-2.) On December 4, 2023, the
undersigned issued a Report and Recommendation, recommending that any such motion be
denied due to Plaintiff’s status as a “three-striker” under 28 U.S.C. § 1915(g). (ECF No. 2.) On
February 9, 2024, the Court adopted the Report and Recommendation over Plaintiff’s objection.
(Order Adopting Report and Recommendation, ECF No. 6.) The Court therefore ordered
Plaintiff to pay the filing fee required to commence this action within thirty days of the issuance
of the Order if he wished to proceed. (Id.) On March 5, 2024, the Court further overruled a
further objection filed by Plaintiff as untimely, lacking in merit, and frivolous. (ECF No. 8.)

Plaintiff did not pay the filing fee. Instead, he filed a notice of appeal on March 21, 2024.
(ECF No. 9.) The United States Court of Appeals for the Sixth Circuit dismissed that appeal on
January 28, 2025, for want of prosecution after Plaintiff failed to pay the appellate filing fee.
(ECF No. 15.)
The case has now returned to this Court. However, to date, Plaintiff has still failed to
comply with the Court’s February 29, 2024 Order. He has neither paid the filing fee nor
requested an extension of time to do so. 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 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 taxsupported 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
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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 comply with the Court’s Order instructing him to pay the filing
fee. (See ECF No. 6.) Moreover, the Court explicitly cautioned Plaintiff in the Order that he must
timely pay the fee if he wished to proceed. 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 a reasonable deadline 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 this
deadline and disregarded the Court’s order, 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 2:23-cv-3940 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
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supporting authority for the objection(s). A District 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 District 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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