UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JEFFREY A. WOODS, et al., 

Plaintiff,

 Civil Action 2:12-cv-00231

v. Judge Edmund A. Sargus

 Magistrate Judge Elizabeth P. Deavers

CAROL CROCKETT-HARRIS, et al.,

 

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, an Ohio inmate who proceeds without the assistance of counsel, initially sought

and was granted in forma pauperis status in this case. (ECF No. 2.) Defendants filed a Motion

to Compel Full Filing Fees on May 11, 2012 on the grounds that Plaintiff had accumulated three

strikes within the meaning of the Prisoner Litigation Reform Act (“PLRA”). See 28 U.S.C. §

1915(g) (limiting a prisoner-plaintiff’s ability to proceed in forma pauperis if he or she

previously brought three actions in forma pauperis while incarcerated that resulted in dismissal

for failure to state a claim). The Court granted Defendants’ Motion on December 13, 2012 and

directed Plaintiff to pay the full $350.00 filing fee within twenty-one (21) days. (ECF No. 24.) 

The Court specifically informed Plaintiff that “[f]ailure to comply with this Order may result in

the dismissal of this case.” (Id. at 5.) The docket indicates that Plaintiff has not paid the filing

fee.

The Court’s inherent authority to dismiss a plaintiff’s action with prejudice because of

his failure to prosecute or failure to comply with the terms of a court order is expressly

recognized in Rule 41(b) of the Federal Rules of Civil Procedure. Rule 41(b) provides in

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pertinent part: “If the plaintiff fails to prosecute or comply with these rules or a court order, a

defendant may move to dismiss the action or any claim against it. Unless the dismissal order

states otherwise, a dismissal under this subdivision (b) . . . operates as an adjudication on the

merits.” Fed. R. Civ. P. 41(b); Link v. Walbash R. Co., 370 U.S. 626, 629–31 (1962). “This

measure is available to the district court as a tool to effect management of its docket and

avoidance of unnecessary burdens on the tax-supported courts and opposing parties.” Knoll v.

AT & T, 176 F.3d 359, 63 (6th Cir. 1999).

Here, the Court specifically warned Plaintiff that failure to pay the requisite filing fee

would result in the dismissal of this action. See Stough v. Mayville Cmty. Schs., 138 F.3d 612,

615 (6th Cir. 1998) (noting that “[p]rior notice, or lack thereof, is . . . a key consideration” in

whether dismissal under rule 41(b) is appropriate). Plaintiff, however, has failed to pay the filing

fee. The Court finds that Plaintiff’s failure to comply with a clear order of the Court establishing

a deadline to pay the full filing fee constitutes bad faith or contumacious conduct. See Steward

v. Cty. of Jackson, Tennessee, 8 Fed.App’x 294, 296 (6th Cir. 2001) (concluding that a plaintiff’s

failure to comply with a court’s order to submit a properly supported motion to proceed in forma

pauperis motion or pay the filing fee within twenty days “constitute[d] bad faith or

contumacious conduct and justifie[d] dismissal”). Accordingly, the Undersigned

RECOMMENDS that this case be DISMISSED WITH PREJUDICE for Plaintiff’s failure to

prosecute and failure to comply with a court order. 

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

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question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge’s report and recommendation). Even when timely objections are filed, appellate

review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994

(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the

issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

Date: January 17, 2013 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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