United States District Court, N.D. Ohio, Eastern Division
BRANDON N. PROFIT, Plaintiff,
STATE OF OHIO, et al., Defendants.
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NOS.
Y. PEARSON UNITED STATES DISTRICT JUDGE.
Judge George J. Limbert ordered Plaintiff to either pay the
filing fee of $400.00 or to re-submit his application to
proceed in forma pauperis. ECF No. 3. Plaintiff has
neither paid the fee nor provided a new application to the
Court. For the reasons given below, this case is dismissed
action, Plaintiff Brandon N. Profit (“Profit” or
“Plaintiff”), a Moorish American of the Washitaw
tribal confederation, seeks monetary damages from Defendants
State of Ohio and the City of Cleveland for real property
allegedly unlawfully taken from him. ECF No. 1
(“Complaint”). Plaintiff filed a motion to
proceed with this matter in forma pauperis (ECF No.
2) (“Motion”), but Magistrate Judge George
Limbert found that the information provided in the motion was
deficient. On August 7, 2019, the magistrate judge ordered
Profit to either submit the full filing fee of $400.00 or
submit a complete application to proceed in forma
pauperis within fourteen (14) days. ECF No. 3
(“Deficiency Order”). The Deficiency Order
that “failure to fully and timely respond to this Order
may result in the denial of his motion to proceed in
forma pauperis and dismissal of this action without
further notice.” Id. at PageID #: 29. A copy
of the Deficiency Order was mailed to Plaintiff at his
address of record on the same day the order was issued. There
is no indication on the docket that the mailing was returned
as undeliverable, or that Plaintiff has paid the filing fee,
responded to the Deficiency Order, or sought an extension of
time to do so.
Standard of Review
to Fed.R.Civ.P. 41(b), the Court has the inherent authority
to dismiss a plaintiff's lawsuit for failure to prosecute
or to comply with the Court's orders. See
Fed.R.Civ.P. 41(b); Chambers v. Nasco, Inc.,
501 U.S. 32, 49 (1991) (noting that a federal district court
has the inherent power to dismiss a case sua sponte
for failure to prosecute as recognized in Link v.
Wabash R.R. Co., 370 U.S. 626, 630-32 (1962)).
“This measure is available to the district court as a
tool to effect ‘management of its docket[.]'”
Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 363
(6th Cir. 1999) (citation omitted).
Court must consider four factors when determining whether to
dismiss an action under Rule 41(b) for failure to prosecute
or comply with the Court's order: “(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 conduct.'” Id.
(quoting Knoll, 176 F.3d at 363).
Court finds that Profit's failure to comply with the
Deficiency Order was willful because Plaintiff initially
filed a deficient Motion and then, when given another
opportunity to file an adequate motion, failed to respond in
any way. The Deficiency Order provided Plaintiff with
specific information regarding the Motion's deficiencies
and fourteen (14) days to file a sufficient motion. ECF No.
3. The generous latitude afforded to pro se
litigants by the courts with respect to their pleadings does
not extend to readily understood orders and deadlines.
See Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir.
1991) (Rule 41(b) dismissal is appropriate when a pro
se plaintiff fails to comply with readily comprehended
the Deficiency Order cautioned Plaintiff that failure to
timely and completely respond may result in denial of the
Motion and dismissal of this action without further notice.
Prior notice that a plaintiff's case may be dismissed is
“a key consideration” in determining whether
dismissal under Rule 41(b) is appropriate. Stough v.
Mayville Cmty. Schs., 138 F.3d 612, 615 (6th Cir. 1998).
Given that Plaintiff has completely disregarded the
Deficiency Order despite clear instructions and notice that
failure to comply may result in dismissal, the Court
concludes that an alternative sanction would not protect the
integrity of the judicial process and the Court's
management of this action. Thus, the Court finds that the
balance of factors weighs in favor of dismissal pursuant to
Fed.R.Civ.P. 41(b). See Steward v. City of Jackson,
8 Fed.Appx. 294, 296 (6th Cir. 2001) (failure to comply with
court's deficiency order constitutes bad faith or
contumacious conduct justifying dismissal).
Profit's motion to proceed in forma pauperis is
denied and this action is dismissed without prejudice.
reasons explained above, this matter is dismissed without
prejudice. The Court certifies pursuant to 28 U.S.C. §
1915(a)(3) that an appeal from ...