United States District Court, S.D. Ohio, Eastern Division
JOSHUA A. RITTENBERRY, Plaintiff,
OFFICER PARNELL, et al., Defendants.
Michael H. Watson Judge.
REPORT AND RECOMMENDATION
CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE.
matter is before the United States Magistrate Judge for a
Report and Recommendation on the Court's September 25,
2017 Order directing Plaintiff to pay the filing fee or
otherwise comply. (ECF No. 4.) For the reasons that follow,
it is RECOMMENDED that Plaintiff's
action be DISMISSED WITHOUT PREJUDICE
pursuant to Federal Rule of Civil Procedure 41(b) for failure
filed this action on September 13, 2017. (ECF No. 1.) Because
Plaintiff had neither paid the filing fee nor submitted the
required materials in support of his application to proceed
in forma pauperis, Plaintiff was ordered to either
pay the $400 filing fee or submit an application to proceed
in forma pauperis under § 1915(a), including
the required affidavit and certified trust fund statement
from his prison's cashier. (September 14, 2017 Order, ECF
No. 2.) Plaintiff was also cautioned that failure to comply
with the Court's Order would result in dismissal of his
filed a motion to proceed in forma pauperis on
September 21, 2017. (ECF No. 3.) However, this application
failed to comply with the Court's previous instructions.
As the Court indicated in its Second Deficiency Order (ECF
No. 4), Plaintiff failed to sign his affidavit or include a
certified copy of his prison trust fund account statement.
(Id. at 2.) In the Court's September 25, 2017
Order and Second Notice of Deficiency, the Court directed
either (1) pay the $400 filing and administrative
fee; or (2) submit, WITHIN THIRTY (30) DAYS of the date of
this order, the required affidavit with signature
and his certified trust fund statement from his prison's
(Sept. 25, 2017 Order, ECF No. 4, at p. 2.) The Court again
cautioned Plaintiff that failure to comply with its Order
would result in dismissal of the case for want of
date, Plaintiff has failed to comply with the Court's
September 25, 2017 Order. He has neither paid the filing fee
nor submitted a signed affidavit along with a completed
certified prison trust fund account statement. Instead,
Plaintiff has only submitted a blank copy of the certified
prison trust fund account statement, which the Court
previously explained was insufficient. (ECF No. 5.)
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
tax-supported courts [and] opposing parties.'”
Knoll v. AT & T, 176 F.3d 359, 363 (6th Cir.
1999) (internal citations omitted).
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 properly
dismissed by the district court where there is a clear record
of delay or contumacious ...