United States District Court, S.D. Ohio, Eastern Division
WILLIAM S. HAYWARD, Plaintiff,
FRANKLIN COUNTY JAIL MEDICAL DEPARTMENT, Defendant.
Michael H. Watson, Judge
REPORT AND RECOMMENDATION
ELIZABETH A. PRESTON DEAVERS UNITED STATES MAGISTRATE JUDGE
matter is before the United States Magistrate Judge for a
Report and Recommendation on the Court's February 3, 2017
Order. (ECF No. 3.) For the reasons that follow, the
undersigned RECOMMENDS that the Court DISMISS Plaintiff's
action pursuant to Federal Rule of Civil Procedure 41(b) for
failure to prosecute.
November 17, 2016, Plaintiff, William S. Hayward, a
then-prisoner in the Franklin County, Ohio, jail proceeding
without the assistance of counsel, submitted an Application
and Affidavit by Incarcerated Person to Proceed Without
Prepayment of Fees. (ECF No. 1.) On November 18, 2016, the
Court directed the Plaintiff to submit, within thirty (30)
days either the required trust fund statement from the prison
cashier, or the filing fee. (ECF No. 2.) Plaintiff submitted
neither. As a result, on February 3, 2017, the Court issued
an Order to Show Cause why this case should not be dismissed
for want of prosecution. (ECF No. 3.) This Court's Order
to Show Case was mailed to Plaintiff's address of record
and returned undeliverable on February 14, 2016. (ECF No. 4.)
The Court specifically warned Plaintiff that failure to
comply with its Orders would result in dismissal of this case
for want of prosecution.
Court's inherent authority to dismiss a plaintiff's
action or particular claims within an action with prejudice
because of his failure to prosecute is expressly recognized
in Federal Rule of Civil Procedure 41(b), which provides in
pertinent part: “If 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.” Fed.R.Civ.P. 41(b); Link v. Walbash 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, 63 (6th Cir.
1999). “Rule 41(b) recognizes the power of the district
court to enter a sua sponte order of dismissal.”
Steward v. City of Jackson, Tenn., 8 F.App'x 294, 296
(6th Cir. 2001) (citing Link, 370 U.S. 626 at 630).
date, Plaintiff has failed to respond to the Court's
Feburary 3, 2017 Order. The Order cautioned Plaintiff that
failure to comply would result in dismissal for want of
prosecution of his claims against Defendants. See Stough
v. Mayville Cmty. Schs., 138 F.3d 612, 615 (6th Cir.
1998) (noting that “[p]rior notice, or lack thereof, is
. . . a key consideration” in whether dismissal under
Rule 41(b) is appropriate); see also Steward v. City of
Jackson, 8 F. App'x 294, 296 (6th Cir. 2001).
therefore RECOMMENDED that the Court DISMISS Plaintiff's
claims against Defendants WITH PREJUDICE under Rule 41(b).
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).
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 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 [the
defendant's] ability to appeal the 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)).
Court notes that Plaintiff's failure to receive filings
in the instant action because he failed to update his address
with the Court does not excuse his noncompliance with Court
orders. Plaintiff has an affirmative duty to notify the Court
of any change in address. See Barber v. Runyon, No.
93-6318, 1994 WL 163765, at *1 (6th Cir. May 2, 1994)
(“If [pro se Plaintiff's] address changed,
she had an affirmative duty to supply the court with notice
of any and all changes in her address.”); see also
Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991)
(“[W]hile pro se litigants may be entitled to
some latitude when dealing with sophisticated legal issues .
. . there is no cause for extending this margin to
straightforward procedural requirements that a layperson can
comprehend.”); Walker v. Cognis ...