United States District Court, S.D. Ohio, Western Division, Dayton
M. Rose District Judge.
REPORT AND RECOMMENDATIONS 
L. Ovington United States Magistrate Judge.
Christopher Harper brings this case against Defendants the
City of Trotwood and Officer Bethany Morrisett alleging under
42 U.S.C. § 1983, 18 U.S.C. § 101, and Ohio law
that she unlawfully arrested him and falsely charged him with
obstructing official business. The case is presently before
the Court sua sponte.
case began in June 2018 when Plaintiff filed his Complaint.
(Doc. #1). After the case was transferred from Cincinnati,
United States District Judge Thomas M. Rose issued a
preliminary pretrial conference order, referring this case to
the undersigned and setting forth the schedule. (Doc. #8). On
March 22, 2019, Defendants filed Motion for Judgment on the
Pleadings. (Doc. #11). Plaintiff asked for an extension of
time to respond to Defendants' Motion which this Court
granted-extending the response deadline to April 19, 2019.
(Doc. #12); Notation Order, 4/5/2019. Despite the extension,
Plaintiff did not file a response. At Defendants'
request, on April 11, 2019, this Court scheduled a discovery
teleconference for April 16, 2019. Plaintiff's counsel,
Rex Allen Wolfgang, indicated that he was available at that
time. (Doc. #13-8, PageID #83). On April 16, 2019,
the Court and Defendants' counsel waited for ten minutes
for Plaintiff's counsel to join the call; Plaintiff's
counsel did not.
April 17, 2019, Defendants filed a Motion to Compel
Discovery. (Doc. #13). Plaintiff did not respond. On May 9,
2019, this Court granted Defendants' Motion to Compel and
ordered Plaintiff to respond to Defendants' Request for
Production of Documents on or before May 24, 2019. (Doc.
#15). Plaintiff was placed on notice that if he did not obey
the Order, he was subject to sanctions, including dismissal
of the case. Further, this Court ordered Plaintiff to show
cause, not later than May 24, 2019, why this case should not
be dismissed for failure to prosecute. Plaintiff was placed
on notice that if he did not respond to the Order, his case
may be dismissed for lack of prosecution. Plaintiff did not
obey the Order and did not respond.
courts have the inherent power to dismiss civil actions for
want of prosecution to “manage their own affairs so as
to achieve the orderly and expeditious disposition of
cases.” Link v. Wabash R.R., 370 U.S. 626,
630-31 (1962); see also Carpenter v. City of Flint,
723 F.3d 700, 704 (6th Cir. 2013) (“It is well settled
that a district court has the authority to dismiss sua sponte
a lawsuit for failure to prosecute.”) (citations
omitted); Carter v. City of Memphis, 636 F.2d 159,
161 (6th Cir. 1980) (“It is clear that the district
court does have the power under Rule 41(b), Fed.R.Civ.P., to
enter a sua sponte order of dismissal.”) (citation
omitted). But, dismissal with prejudice for failure to
prosecute is “‘a harsh sanction which the court
should only order in extreme situations showing a clear
record of contumacious conduct by the plaintiff.'”
Carpenter, 723 F.3d at 704 (quoting Tung-Hsiung
Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir.
2005)). By comparison, “the sanction of dismissal
without prejudice is a comparatively lenient
sanction, and thus the controlling standards should be
greatly relaxed … because the dismissed party is
ultimately not irrevocably deprived of his day in
court.” Muncy v. G.C.R., Inc., 110 Fed.Appx.
552, 556 (6th Cir. 2004) (citing Nwokocha v. Perry,
3 Fed.Appx. 319, 321 (6th Cir. 2001) (per curiam)).
determine whether dismissal for failure to prosecute is
appropriate, courts consider four factors:
(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 of the action.
Carpenter, 723 F.3d at 704 (quoting Mulbah v.
Detroit Bd. of Educ., 261 F.3d 586, 589 (6th Cir. 2001)
(quotation marks omitted)).
present case, Plaintiff is at fault. He did not respond to
Defendants' Motion for Judgment on the Pleadings or
Motion to Compel, did not participate in the April 16, 2019
discovery teleconference, and failed to respond to this
Court's Order to Show Cause. Turning to the second
factor, Defendants suffered some prejudice as they have spent
time and money on attempts to complete discovery. As for the
third factor, this Court, in the Order to Show Cause, warned
Plaintiff that his failure to obey the Order could result in
sanctions, including dismissal of his case, and that his
failure to prosecute may result in dismissal of the case.
Finally, although less drastic sanctions have not been
imposed, any sanctions would have little effect on Plaintiff
because it is unlikely he would respond to any sanctions.
Taken together, these factors support the less-drastic
sanction of dismiss without prejudice in this case.
IS THEREFORE RECOMMENDED THAT:
1. Plaintiff's Complaint be dismissed without prejudice;
2. The case be terminated on the Court's docket.