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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

JEFFERY A. JOHNSON, 

 

 Plaintiff, 

 v. Civil Action 2:13-cv-0025 

 Judge Watson 

 Magistrate Judge King 

MUSKINGUM CO. SHERIFF’S DEPT., 

et al., 

 Defendants. 

ORDER AND 

REPORT AND RECOMMENDATION 

Plaintiff Jeffery A. Johnson, an inmate currently incarcerated at 

the Noble Correctional Institution (“NCI”), brings this action under 

42 U.S.C. § 1983 against the Muskingum County Sheriff’s Department, 

Sheriff Matthew Lutz, several Sheriff’s deputies, the “Sheriff’s 

Department Food Personal” [sic] (collectively, “Muskingum County 

Defendants”), Nurse Shane Love and Dr. Anthony Khoury (collectively, 

“the Medical Defendants”), and Aramark Correctional Services, LLC 

(“Aramark”), alleging civil rights violations “under the Fifth, 

Eighth, and Fourteenth Amendment[s]” to the United States Constitution 

for “refusing [plaintiff] medical care.” Amended Complaint, Doc. No. 

32, p. 5. The Amended Complaint also asserts a supplemental state law 

claim against the Medical Defendants for “negligently failing to give 

[plaintiff]proper medical treatment.” Id. This matter is now before 

the Court on defendants’ joint motions to dismiss for failure to 

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prosecute, Doc. Nos. 46 and 47, and on plaintiff’s motions not to 

dismiss and to stay this action, Doc. Nos. 48 and 53. 

I. BACKGROUND 

On March 1, 2013, the Court established a case schedule pursuant 

to Fed. R. Civ. P. 16(b). Order, Doc. No. 16. The Court ordered, 

inter alia, that all discovery be completed no later than September 1, 

2013 and that dispositive motions, if any, be filed no later than 

October 1, 2013. Id. at 2-3. Upon plaintiff’s motion, the Court 

later extended the deadline for completing discovery to December 1, 

2013. Order, Doc. No. 42, p. 1. 

Defendant Aramark moved for judgment on the pleadings, Doc. No. 

34, and the Medical Defendants moved to dismiss plaintiff’s claims, 

Doc. No. 39. The undersigned previously recommended that plaintiff’s 

state law negligence claims against the Medical Defendants be 

dismissed, but that plaintiff’s claim under 42 U.S.C. § 1983 against 

these defendants for denial of medical care be permitted to proceed. 

Order and Report and Recommendation, Doc. No. 49. The undersigned 

further recommended that plaintiff’s claims against defendant Aramark 

be dismissed in their entirety. Id. 

On September 20, 2013, the Muskingum County Defendants noticed 

the deposition of plaintiff to be taken on October 17, 2013 at NCI. 

Notice of Deposition, Doc. No. 45.1

 Thereafter, defendants moved to 

dismiss this action for failure to prosecute, representing that 

plaintiff had failed to appear for his deposition at the noticed time. 

 

1 The notice of deposition was filed on September 19, 2013, but the 

accompanying certificate of service states that these defendants sent the 

notice to plaintiff at NCI by regular mail on September 20, 2013. Id. at 2. 

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Doc. No. 46, p. 1; Doc. No. 47, p. 1. Defendants specifically 

represent that, when their counsel arrived at NCI on October 17, 2013, 

they learned for the first time that plaintiff had been transferred to 

a different facility on August 30, 2013. Id. According to 

defendants, “we were advised that the Notice of Deposition (doc. 45) 

which was served on the previous address would have been forwarded to 

the new facility where he is currently incarcerated.” Doc. No. 46, p. 

1. Defendants further represent that counsel for the Muskingum County 

Defendants received a letter from plaintiff on October 18, 2013. Doc. 

No. 47, p. 1 (citing Exhibit A (plaintiff’s letter), attached 

thereto). That letter, which was dated October 10, 2013 and which was 

postmarked October 15, 2013, advised that plaintiff has “been 

transferred to F.M.C. – Franklin Medical Center so the deposition will 

be held here at your convenience.” Exhibit A, attached to Doc. No. 

47. Defendants move to dismiss this action on the ground that 

plaintiff failed to apprise defendants and the Court of his new 

address. Doc. Nos. 46 and 47. 

In response, plaintiff asks that the Court not dismiss this 

action. Doc. Nos. 48 and 53. Plaintiff explains that he is in the 

process of seeking legal counsel and that he believed that his letter 

dated October 10, 2013, would have timely notified defense counsel of 

his new address. Doc. No. 48. Plaintiff further explains that, 

although he learned of his transfer on August 29, 2013, he was not 

scheduled to receive his “inmate account funds” for two to four weeks 

later[.]” Doc. No. 53, p. 2. On October 14, 2013, plaintiff used an 

“INMATE FREE LETTER” “to give Notification of his whereabout [sic] to 

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the Defendant listed herein[.]” Id. He represents that he remains 

available for deposition. Id. 

In addition to opposing the joint motions to dismiss, plaintiff 

asks the Court to stay this action for 90 days “until Plaintiff is 

able to retain counsel.” Id. Although defendants originally opposed 

plaintiff’s request to stay this action, see Doc. No. 50, p. 1, 

defendants now represent that they do not oppose the requested stay or 

a brief extension of the pretrial schedule. Doc. No. 57, p. 1. 

II. MOTIONS TO DISMISS FOR FAILURE TO PROSECUTE 

Although defendants do not cite to a specific rule in their 

motions to dismiss for failure to prosecute, the Court notes that Rule 

41(b) of the Federal Rules of Civil Procedure authorizes the 

involuntary dismissal of an action “[i]f the plaintiff fails to 

prosecute or to comply with these [Federal Rules of Civil Procedure] 

or a court order[.]” Fed. R. Civ. P. 41(b). See also Knoll v. AT&T, 

176 F.3d 359, 363 (6th Cir. 1999) (“[Rule 41(b) dismissal] 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.’”) (quoting Matter of Sanction of 

Baker, 744 F.2d 1438, 1441 (10th Cir. 1984)). Similarly, Rule 37 

authorizes the Court to impose sanctions, including the dismissal of 

an action, if a party fails to attend his own deposition. Fed. R. Civ. 

P. 37(d)(3); (b)(2)(A)(v). See also Universal Health Group v. 

Allstate Ins. Co., 703 F.3d 953, 956 (6th Cir. 2013) (citing Bass v. 

Jostens, Inc., 71 F.3d 237, 241 (6th Cir. 1995)). 

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In determining whether dismissal under Rule 41(b) or Rule 37(b) 

is appropriate, this Court must consider the following factors: 

(1) whether the party’s failure to cooperate is due to 

willfulness, bad faith, or fault; (2) whether the adversary 

was prejudiced by the dilatory conduct of the party; (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. 

Stough v. Mayville Community Sch., 138 F.3d 612, 615 (6th Cir. 1998) 

(listing factors when considering dismissal under Rule 41(b)) (citing 

Reg’l Refuse Sys., Inc. v. Inland Reclamation Co., 842 F.2d 150, 153-

55 (6th Cir. 1988)); Universal Health Group, 703 F.3d at 956 

(considering same factors under Rule 37(b) dismissal). “Prior notice, 

or the lack thereof, is [] a key consideration[.]” Stough, 138 F.3d 

at 615. 

 Upon consideration of the record in this case and the above 

factors, the Court concludes that dismissal of this action for lack of 

prosecution is unwarranted. First, the record does not reflect that 

plaintiff’s failure to appear for his deposition on October 17, 2013 

at NCI resulted from plaintiff’s failure to cooperate, willfulness, 

bad faith or fault. Instead, plaintiff attempted, with the resources 

available to him, to notify counsel of his new address prior to the 

deposition. Although the Court agrees with defendants that plaintiff 

should have notified the Court and all counsel of this new address, 

the Court cannot infer bad faith from this pro se litigant’s failure 

to do so. 

 Second, plaintiff’s failure to appear for the deposition 

indisputably resulted in inconvenience and some expense to defendants. 

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However, the Court is not persuaded that this isolated incident, 

standing alone, creates such prejudice as to warrant dismissal of this 

action. Indeed, defendants have not represented that they were 

otherwise precluded from conducting plaintiff’s deposition at the 

Franklin Medical Center in the approximately six (6) weeks available 

to the parties before the close of discovery. 

 Third, defendants have not shown, and the record does not 

reflect, that plaintiff has previously been warned that his failure to 

appear for the deposition would result in the dismissal of this 

action. As noted supra, a lack of such prior notice is a key 

consideration, see Stough, 138 F.3d at 615, and weighs against 

dismissal of this action. 

 Finally, defendants do not ask the Court to consider sanctions 

less severe than dismissal. Against the backdrop of the relevant case 

law discussed supra, the Court cannot conclude that an isolated 

failure to appear for his deposition warrants the dismissal of 

plaintiff’s claims. For all these reasons, defendants’ requests to 

dismiss this action for failure to prosecute are not well-taken. 

III. REQUESTS TO STAY THIS ACTION AND/OR MODIFY CASE SCHEDULE 

 Plaintiff seeks to stay this action for 90 days “until Plaintiff 

is able to retain counsel.” Doc. No. 53, p. 2. See also Doc. No. 48. 

Plaintiff represents that he has contacted three law firms and is 

waiting for a response. Doc. No. 48. Plaintiff also asks the Court 

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to “refer me to legal counseling[.]” Id.2 Defendants do not oppose a 

temporary stay of proceedings. Doc. No. 57, p. 1. 

Plaintiff, however, has not shown good cause for a stay of these 

proceedings. This action was filed on January 11, 2013. See 

Complaint, Doc. No. 4. Although the record indicates that plaintiff 

has actively searched for counsel to represent him, see, e.g., Doc. 

Nos. 41, 42, 48, 53, nearly a year has passed since the inception of 

this litigation and key deadlines have already passed. See Order, 

Doc. No. 42; Order, Doc. No. 42. Moreover, the undersigned has 

already issued a recommended decision on defendants’ motions to 

dismiss. See Order and Report and Recommendation, Doc. No. 49.3

 To 

stay the case under these circumstances would unnecessarily delay 

resolution of at least some of the claims in this case. 

Defendants also ask the Court to set a “new (albeit brief) 

discovery period and dispositive motion deadline[.]” Doc. No. 57, p. 

1. As previously noted, the Court ordered, inter alia, that all 

discovery be completed no later than September 1, 2013 (later 

extended, upon plaintiff’s motion, to December 1, 2013) and that 

dispositive motions be filed no later than October 1, 2013. Order, 

Doc. No. 16, pp. 2-3; Order, Doc. No. 42, p. 1. Rule 16(b) of the 

Federal Rules of Civil Procedure provides that a “schedule may be 

modified only for good cause and with the judge’s consent.” Fed. R. 

Civ. P. 16(b)(4). “‘The primary measure of Rule 16's ‘good cause’ 

 

2 Plaintiff’s request that the Court refer him to “legal counsel” is tantamount 

to a motion to appoint counsel. For the reasons previously stated, see 

Order, Doc. No. 42, p. 1, this request is denied without prejudice to renewal 

at a later stage of the proceedings. 

3 Objections to that Report and Recommendation are due no later than January 2, 

2014. Order, Doc. No. 56. 

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standard is the moving party’s diligence in attempting to meet the 

case management order’s requirements.’” Inge v. Rock Fin. Corp., 281 

F.3d 613, 625 (6th Cir. 2002) (quoting Bradford v. DANA Corp., 249 

F.3d 807, 809 (8th Cir. 2001)). “A district court should also 

consider possible prejudice to the party opposing the modification.” 

Andretti v. Borla Performance Indus., Inc., 426 F.3d 824, 830 (6th 

Cir. 2005) (citing Inge, 281 F.3d at 625). The focus is, however, 

“primarily upon the diligence of the movant; the absence of prejudice 

to the opposing party is not equivalent to a showing of good cause.” 

Ortiz v. Karnes, 2:06-cv-562, 2010 U.S. Dist. LEXIS 75287, 2010 WL 

2991501, at *1 (S.D. Ohio July 26, 2010) (citing Tschantz v. McCann, 

160 F.R.D. 568, 571 (N.D. Ind. 1995)). Whether to grant leave under 

Rule 16(b) falls within the district court’s discretion. Leary v. 

Daeschner, 349 F.3d 888, 909 (6th Cir. 2003). 

 Apart from addressing the circumstances surrounding plaintiff’s 

deposition, defendants have not explained why they have been unable to 

meet the deadlines previously established by this Court. Moreover, it 

is not apparent why the nine-month discovery period was insufficient 

for the parties to complete all appropriate discovery. 

 Despite this lack of good cause, the Court is nevertheless aware 

of plaintiff’s efforts to locate counsel and the lack of prejudice to 

any party should the case schedule be extended. Accordingly, the 

Court will exercise its discretion to grant a brief extension of time 

for the parties to conduct discovery and file motions for summary 

judgment. 

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WHEREUPON, it is RECOMMENDED that defendants’ motions to dismiss 

for lack of prosecution, Doc. Nos. 46 and 47, be DENIED. It is 

further RECOMMENDED that plaintiff’s motion not to dismiss, Doc. No. 

48, be GRANTED to the extent that it asks this Court not to dismiss 

his claims for failure to prosecute. 

To the extent that plaintiff’s motion, Doc. No. 48, seeks the 

appointment of counsel, the motion is DENIED without prejudice to 

renewal at a later stage of the proceedings. Plaintiff’s motion to 

stay, Doc. No. 53, is DENIED. However, the case schedule previously 

established in Order, Doc. No. 16, and Order, Doc. No. 42, p. 1, is 

MODIFIED as follows: 

Discovery must be completed no later than January 31, 2014. The 

parties are REMINDED that the discovery completion date requires that 

discovery requests be made sufficiently in advance to permit timely 

response by that date. 

Dispositive motions may be filed no later than February 28, 2014.

 The parties are ADVISED that the Court will not look with favor 

upon any future request to further extend these deadlines. 

 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 

thereof in question, as well as the basis for objection thereto. 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 

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

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 The parties are specifically advised that 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 of the right to appeal the 

decision of the District Court adopting the Report and Recommendation. 

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of 

Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States 

v. Walters, 638 F.2d 947 (6th Cir. 1981). 

December 11, 2013 s/Norah McCann King 

 Norah McCann King 

 United States Magistrate Judge 

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