United States District Court, S.D. Ohio, Eastern Division
Algenon L. Marbley, Judge.
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE.
a pro se prisoner's complaint filed pursuant to 42 U.S.C.
§ 1983. On April 9, 2019, the Undersigned issued a
Report and Recommendation in this matter. (Doc. 11). The
Clerk's Office sent a copy of the Report and
Recommendation to Plaintiff, but the United States Postal
Service (“USPS”) returned the Court's mail to
Plaintiff as undeliverable given that he had been released
from prison. (Doc. 13). Thereafter, the Court issued a
scheduling order in this case, again mailing a copy to
Plaintiff. (Doc. 15). But the same thing happened: The USPS
returned the mail as undeliverable.
25, 2019, the Court entered an order requiring Plaintiff to
show cause as to why this matter should not be dismissed for
want of prosecution given that the USPS had returned the
Court's mail and because Plaintiff has not updated his
mailing address with the Court. The Order noted that pro se
litigants have an obligation to keep the Court updated
regarding any changes in address, and “failure to do so
may result in dismissal for want of prosecution.” (Doc.
18). Thirty days have passed since the issuance of that
Order, and Plaintiff has not updated his address or otherwise
responded to that Order.
Rule of Civil Procedure 41(b) gives this Court the authority
to dismiss a case for “failure of the plaintiff to
prosecute or to comply with these rules or any order of the
court.” See, e.g., Nye Capital
Appreciation Partners, L.L.C. v. Nemchik, 483 Fed.Appx.
1, 9 (6th Cir. 2012); Knoll v. Am. Tel. & Tel.
Co., 176 F.3d 359, 362-63 (6th Cir. 1999). The Court
considers four factors when considering dismissal under
(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 [*2] party was warned that failure to cooperate
could lead to dismissal; and (4) whether less drastic
sanctions were imposed or considered before dismissal was
Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir.
2005); see Reg'l Refuse Sys., Inc. v. Inland
Reclamation Co., 842 F.2d 150, 155 (6th Cir. 1988).
the first factor, the Court finds that Plaintiff's
failure to respond to or comply with the Court's previous
order is due to Plaintiff's willfulness or fault.
Specifically, it appears that Plaintiff did not receive the
Court's orders because he failed to update his address or
monitor this action. Accordingly, the first factor weighs in
favor of dismissal.
the second factor, the Court finds that Defendants, to date,
have not been prejudiced by Plaintiff's failure to comply
with the Court's order. However, if further delay occurs,
they will suffer prejudice. Indeed, the discovery and
dispositive motion deadlines in this case are fast
approaching. (See Doc. 15).
the third factor, this Court's previous Order warned that
the Court may dismiss this case if he failed to update his
address with the Court. (See Doc. 18).
as to the fourth factor, the Undersigned concludes that
alternative sanctions would not be effective. Plaintiff was a
prisoner proceeding in forma pauperis in this action, (Doc.
1), and given that he has not responded to the Court's
orders to date, no other remedy would fix what is happening
reasons set forth above, the Undersigned
RECOMMENDS dismissal of Plaintiff's
action without prejudice pursuant to Rule 41(b). White v.
City of Grand Rapids, 34 Fed.Appx. 210, 211, 2002 WL
926998, at *1 (6th Cir. 2002) (finding that a pro se
prisoner's complaint “was subject to dismissal for
want of prosecution because he failed to keep the district
court apprised of his current address”); see also
Jourdan v. Jabe, 951 F.2d 108 (6th Cir. 1991).
Undersigned further RECOMMENDS a finding
that any appeal from this action would not be taken in good
faith and would be totally frivolous. Fed. R. App. P. 24.