Fisk v. Dayton Police Department et al

Filing 22

REPORT AND RECOMMENDATIONS: 1) 21 Defendants' request for an Order dismissing this case be GRANTED; and 2) The case be terminated on the Court's docket. Objections to R&R due by 6/20/2017. Signed by Magistrate Judge Sharon L. Ovington on 6-6-17. (mcm)(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
WESTERN DIVISION AT DAYTON
ROBERT FISK,
Plaintiff,
vs.
DAYTON POLICE DEPARTMENT,
Defendants.

: Case No. 3:16-cv-00118
:
: District Judge Thomas M. Rose
: Magistrate Judge Sharon L. Ovington
:
:
:
:
:
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REPORT AND RECOMMENDATIONS1
Plaintiff filed this case pro se and in forma pauperis. The undersigned previously
issued a Report and Recommendations concluding that all but one claim he asserted in his
Complaint should be dismissed under 28 U.S.C. §1915(e)(2). (Doc. #3, PageID #s 26-27).
The Report, moreover, notified Plaintiff that he “must inform the Clerk of Court promptly of
any changes of address he has during the pendency of this lawsuit. Failure to do so may
result in dismissal of this case for failure to prosecute.” Id. at 28. In August 2016, District
Judge Rose adopted the Report and Recommendations over Plaintiff’s Objections. (Doc.
#7).
Since those events, Defendants Carrte and Wombold have attempted to proceed with
discovery but encountered difficulties. They therefore filed a Motion to Compel (Doc. #14).
The next day, the Court issued an Order to Show Cause that required Plaintiff to answer
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Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.

Defendants’ First Set of Interrogatories and First Requests for Production of Documents or
show cause why Defendants’ Motion to Compel should not be granted. (Doc. #15).
Although the Clerk of Court attempted to serve the Show Cause Order on Plaintiff at his
address of record, the postal service returned it to the Clerk of Court marked “Not
Deliverable as Addressed.” (Doc. #18).
By this time, the deadline for Plaintiff to respond to Defendants’ Motion to Compel
and the Order to Show came and went with no word from Plaintiff. Consequently, the
undersigned issued an Order granting Defendants’ Motion to Compel and instructing
Plaintiff to respond, on or before June 2, 2017, to Defendants’ discovery requests. The
Court also directed Plaintiff to show cause why this case should not be dismissed for failure
to prosecute. Plaintiff was again notified that “failure to comply with this Order could result
in the imposition of additional sanctions, including, but not limited to, dismissal of the
lawsuit with prejudice to refiling.” (Doc. #19, PageID #106). Plaintiff has not responded to
the Order to Show Cause.
Defendants recently filed a Notice explaining that Plaintiff has failed to produce the
discovery responses required by the Court’s Order to Show Cause. They seek an Order
dismissing the case due to Plaintiff’s failure to prosecute, failure to respond to Defendants’
discovery requests, failure to inform the Court of his current address, and failure to respond
to the Court’s two Orders to Show Cause. (Doc. #21, PageID #109).
Rule 41(b) of the Federal Rules of Civil Procedure authorizes dismissal of a case for
failure to prosecute. Additionally, district courts have the inherent power to dismiss civil
cases for want of prosecution to “manage their own affairs so as to achieve the orderly and
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expeditious disposition of cases. Link v. Wabash R.R., 370 U.S. 626, 630-31 (1962). The
record of this case establishes that Plaintiff has failed to respond to the Court’s two Orders
to Show Cause and to Defendants’ discovery requests despite being ordered to do so.
Plaintiff has also not kept the Court apprised of his current address and has not otherwise
taken action in this case since participating in the preparation of the parties Rule 26(f)
Report on December 8, 2016. (Doc. #12). The main problem with Plaintiff’s lack of action
over the last six months is that the record lacks any explanation for his omissions and failure
to comply with the Court’s discovery Order. Under these circumstances, dismissal of this
case under Rule 41(b) and the Court’s inherent power is warranted.
IT IS THEREFORE RECOMMENDED THAT:
1.

Defendants’ request for an Order dismissing this case (Doc. #21) be
GRANTED; and

2.

The case be terminated on the Court’s docket.

June 6, 2017

s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after
being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this
period is extended to SEVENTEEN days because this Report is being served by one of the
methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Such objections
shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. If the Report and Recommendation is
based in whole or in part upon matters occurring of record at an oral hearing, the objecting
party shall promptly arrange for the transcription of the record, or such portions of it as all
parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned
District Judge otherwise directs. A party may respond to another party=s objections within
FOURTEEN days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

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