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Rittenberry v. Parnell

United States District Court, S.D. Ohio, Eastern Division

November 2, 2017

JOSHUA A. RITTENBERRY, Plaintiff,
v.
OFFICER PARNELL, et al., Defendants.

          Michael H. Watson Judge.

          REPORT AND RECOMMENDATION

          CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE.

         This 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 to prosecute.

         I.

         Plaintiff 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 case. (Id.)

         Plaintiff 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 Plaintiff to:

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 cashier.

(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 prosecution. (Id.)

         To 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.)

         II.

         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 tax-supported 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 properly dismissed by the district court where there is a clear record of delay or contumacious ...


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