Fontain v. Nestor

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

: MARCUS FONTAIN, :

: Case No. 1:22-cv-431 Plaintiff, :

: Judge Jeffery P. Hopkins v. :

: Magistrate Judge Karen L. TERRY NESTOR, et al., : Litkovitz

: Defendants. :

ORDER ADOPTING REPORT AND RECOMMENDATION

This matter is before the Court on the Report and Recommendation issued by Chief Magistrate Judge Karen L. Litkovitz on May 31, 2023 (Doc. 57), which recommends that this Court dismiss this matter with prejudice for want of prosecution pursuant to Fed. R. Civ. P. 41(b) and terminate it on the docket. For the reasons stated more fully below, the Court ADOPTS the Report and Recommendation. The Court also DENIES the pending motions AS MOOT. The pending motions are as follows: • The Sandhu Defendants’1 Motion to Dismiss the First Amended Complaint (Doc. 10); • The Judicial Defendants’2 Motion to Dismiss the First Amended Complaint (Doc. 13); • Plaintiff’s Motion for Enlargement of Time (Doc. 21); • The Judicial Defendants’ Motion to Strike the Second Amended Complaint, or in the Alternative, Motion to Dismiss (Doc. 25);

1 The “Sandhu Defendants” refers collectively to Defendants Brian J. O’Connell; Strauss Troy, LPA; Harjinder Sandhu; H&R Cincy Properties, LLC, Jasreen Sandhu. 2 The “Judicial Defendants” refers collectively to Defendants Judge Terry Nestor, Judge Robert Peeler, and former Judge Ethna Cooper. • The Sandhu Defendants’ Motion to Dismiss the Second Amended Complaint (Doc. 26); • Plaintiff’s Motion for Leave to File Second Amended Complaint and Motion to Expedite Consideration (Doc. 38); • Plaintiff’s Motion for Judicial Notice (Doc. 39); • The Receiver Defendants’3 Motion to Dismiss (Doc. 40); and • Plaintiff’s Motion to Strike (Doc. 43). *** Plaintiff Marcus Fontain initiated this civil rights action pro se on July 25, 2022. Doc. 1. Plaintiff filed his First Amended Complaint on August 15, 2022. Doc. 5. The parties then filed various motions through the rest of the calendar year, including Plaintiff’s Motion for Referral to the Office of the Disciplinary Counsel of the Supreme Court of Ohio (“Motion for Referral”) (Doc. 19). The case was reassigned from Judge Matthew McFarland to Judge Jeffery P. Hopkins on December 21, 2022. Doc. 50. On February 1, 2023, the Court issued an Order denying Plaintiff’s Motion for Referral. Doc. 51. The Clerk mailed a copy of the Order to Plaintiff. On March 15, 2023, the mailed copy was returned as undeliverable with a notation that Plaintiff was “deceased.” Doc.

52. On April 6, 2023, the Court issued an Order directing counsel for Defendants to file a report regarding Plaintiff’s status. Doc. 53. Defendants reported to the Court the belief that Plaintiff is deceased based, in part, on third party reports; but they were unable to obtain written verification of that fact—possibly due to Plaintiff’s suspected use of aliases. See Docs. 54, 55. Because they were unable to provide a suggestion of death, Defendants requested that

3 The “Receiver Defendants” refers collectively to Defendants Prodigy Properties, LLC, Jeffrey Lane, April Lane, Zachary D. Prendergast, and Robbins Kelly Patterson & Tucker the Court issue an Order to Plaintiff to show cause why his case should not be dismissed for failure to prosecute. See id. On May 10, 2023, the Court issued an Order to Plaintiff to show cause, in writing and within 15 days of the date of the Order, why the Court should not dismiss this case for want

of prosecution. Doc. 56. Plaintiff never responded to the Order to show cause. And on May 31, 2023, Chief Magistrate Judge Litkovitz issued a Report and Recommendation, recommending the dismissal of this case with prejudice for Plaintiff’s failure to prosecute. Doc. 57. Because no objections have been filed and the time for filing such objections under Fed. R. Civ. P. 72(b) has expired, the Court reviews the Report and Recommendation for clear error. See Fed. R. Civ. P. 72(b) advisory committee notes (“When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”); Redmon v. Noel, No. 1:21-CV-445, 2021 WL 4771259,

at *1 (S.D. Ohio Oct. 13, 2021) (collecting cases). The Court has reviewed the Report and Recommendation (Doc. 57) and determined that it does not contain clear error. Therefore, the Court ADOPTS the Report and Recommendation in its entirety. Accordingly, it is hereby ORDERED that: 1. The Amended Complaint (Doc. 5) be DISMISSED with prejudice and TERMINATED on the docket of this Court; and 2. The pending motions in this matter (Docs. 10, 13, 21, 25, 26, 38, 39, 40, 43) are DENIED as moot.

Pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies that an appeal of this Order would not be taken in good faith. The Court accordingly DENIES Plaintiff leave to appeal in forma pauperis. In accordance with Fed. R. App. P. 24(a)(5), Plaintiff remains free to file a motion for leave to proceed on appeal in forma pauperis in the Sixth Circuit Court of Appeals. Callihan v. Schneider, 178 F.3d 800, 803 (6th Cir. 1999), IT IS SO ORDERED.

Dated: January 30, 2024 ( a , Hon. Jeffery P. Hopkins United States District Judge