Smith v. Lavender

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

JOSEPH W. SMITH, JR., : Case No. 2:22-cv-01875 : Plaintiff, : District Judge Sarah D. Morrison : Magistrate Judge Caroline H. Gentry vs. : : SHERIFF GEORGE W. LAVENDER, : et al., : Defendants. :

REPORT AND RECOMMENDATION

Currently pending before the Court is a Motion to Dismiss filed by counsel for Defendant Jennifer L. Gill, LPN (“Nurse Gill”) on December 5, 2022. (ECF No. 22.) On December 6, 2022, the Court notified Plaintiff of Defendant Gill’s Motion and of the requirement that he file a memorandum in opposition no later than December 29, 2022. (ECF No. 25.) Plaintiff did not comply. Therefore, on January 30, 2023, the Court ordered Plaintiff to show cause no later than February 20, 2023 why Defendant Gill’s Motion to Dismiss should not be granted as unopposed. (ECF No. 27.) The Court’s Order explicitly warned Plaintiff that “[f]ailure to timely comply . . . [would] result in a Report and Recommendation to the District Judge that the Motion [to Dismiss] be granted.” (Id.) To date, Plaintiff has failed to respond to the Court’s January 30, 2023 Order. Plaintiff's failure to prosecute this matter and to obey an Order of the Court warrants dismissal of this case pursuant to Fed. R. Civ. P. 41(b). See Jourdan v. Jabe, 951 F.2d 108, 109–10 (6th Cir. 1991). District courts have the power to sua sponte 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 Jourdan, 951 F.2d at 109. Though Plaintiff is proceeding pro se, the Supreme Court “[has] never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.” McNeil v. United States, 508 U.S. 106, 113 (1993). Accordingly, the undersigned Magistrate Judge RECOMMENDS that Defendant Gill’s Motion to Dismiss be GRANTED as unopposed and for the reasons stated in the

Motion. Plaintiff’s claim against Defendant Gill should also be dismissed on the grounds of Plaintiff’s failure to comply with this Court’s Order to Show Cause. IT IS SO RECOMMENDED. /s/ Caroline H. Gentry Caroline H. Gentry United States Magistrate Judge

Procedure on Objections If any party objects to this Report and Recommendation (Report), that party may, within fourteen (14) days of the date that this Report was filed, file and serve written objections to specific findings or recommendations along with supporting authority for the objection(s). Responses to objections are due ten days after objections are filed and replies by the objecting party are due seven days thereafter. A District Judge will then make a de novo determination of the portions of the report, findings, or recommendations

to which objection is made. The District Judge may accept, reject, or modify, in whole or in part, this Court’s findings or recommendations, may receive further evidence, or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

The parties are advised that a failure to object to the Report will result in a waiver of a party’s right (1) to have the District Judge review the Report de novo and (2) to appeal a decision of the District Court adopting the Report. See Thomas v. Arn, 474 U.S. 140 (1985); U.S. v. Walters, 638 F.2d 947 (6th Cir. 1981).