UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

EMANUEL SHOULDERS, Civil Action No. 1:17-cv-703 

Plaintiff, Barrett, J. 

 Bowman, M.J 

vs. 

Z. CHERRYHOLMES, et al., 

 Defendants. 

REPORT AND RECOMMENDATION 

Plaintiff, a prisoner at the Lebanon Correctional Institution, filed a pro se civil rights 

complaint in this Court against defendants Z. Cherryholmes, Gary Mohr, Tom Schwietzer, 

and Ms. Rutherford. Upon sua sponte review of the complaint pursuant to 28 U.S.C. §§ 

1915(e)(2)(B) and 1915A(b)(1), Plaintiff’s complaint was dismissed with prejudice with the 

exception of Plaintiff’s Eighth Amendment failure to protect claims against defendants 

Cherryholmes and Rutherford, and his First Amendment and excessive force claims 

against Cherryholmes. 

In December 2018, Defendants filed a motion for summary judgment on all claims. 

Plaintiff sought and was granted an extension of time until July 2, 2019 in which to 

respond to Defendants’ motion. (Docs. 44). The Order expressly stated that “[n]o 

additional extensions of time will be granted related to this motion.” (See Docs. 40, 41). 

Plaintiff has failed to timely respond to the motion. Additionally, the Court order was 

returned as “undeliverable.” (See Doc. 45). 

The Defendants' unopposed motion for summary judgment has now been pending 

for four months. The undersigned has reviewed that motion and finds it well-reasoned 
2

and well-supported. 

Based upon the grounds advocated in their motion for summary judgment, 

Defendants persuasively argue that Plaintiff has failed to show the existence of any 

genuine issue of material fact to support any of the elements of his failure to protect and 

excessive force claims, and that they are each entitled to qualified immunity in their 

respective individual capacities. Accordingly, the undersigned agrees that Defendants 

are entitled to judgment as a matter of law.1

The undersigned takes judicial notice that the prior Order was returned to this 

Court as “undeliverable” because Plaintiff is no longer an inmate at that facility. (See 

Doc. 45). Thus, Plaintiff has failed to keep this Court apprised of his current address, 

and there is no indication that he has taken any further steps to prosecute this case. 

It is incumbent upon any litigant, including a pro se prisoner litigant, to keep the 

Court apprised of her current address. While some latitude may be extended to pro se 

litigants “when dealing with sophisticated legal issues ... there is no cause for extending 

this margin to straightforward procedural requirements that a layperson can comprehend 

as easily as a lawyer.” Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991). Under Rule 

41(b) of the Federal Rules of Civil Procedure, a court may dismiss any case for “failure of 

the plaintiff to prosecute or to comply with the rules or order of the court....” Unless the 

court orders otherwise, a dismissal for failure to prosecute pursuant to Rule 41(b) is an 

adjudication on the merits that is to be given preclusive effect, barring subsequent actions 

based on the same allegations. See Bragg v. Flint Bd. of Educ., 570 F.3d 775 (6th Cir. 

2009). 

                                                            

1

  In light of this finding, Plaintiff’s unsupported motion for summary judgment (Doc. 37) should be DENIED as

MOOT
3

Without such basic information as a current address from a would-be plaintiff, a 

court has no recourse but to dismiss a complaint for failure to prosecute. See, e.g., 

Whittaker v. Hilltop Records, 2009 WL 2734052 (S.D. Ohio Aug. 27, 2009) (dismissal of 

pro se plaintiff); Buck v. U.S. Dept. of Agriculture, Farmers Home Admin., 960 F.2d 603, 

608–609 (6th Cir. 1992) (dismissal upheld in part due to counsel’s failure to advise court 

of change of address). 

In light of the foregoing, IT IS RECOMMENDED THAT Defendants' motion for 

summary judgment (Doc. 41) be GRANTED, Plaintiff’s motion for summary judgment 

(Doc. 37) be DENIED; and alternatively, that judgment be entered in Defendants' favor 

with prejudice based upon Plaintiff’s failure to prosecute, and that this case be CLOSED. 

 

s/Stephanie K. Bowman 

 Stephanie K. Bowman 

 United States Magistrate Judge 

UNITED STATES DISTRICT COURT 
4

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

EMANUEL SHOULDERS, Civil Action No. 1:17-cv-703 

Plaintiff, Barrett, J. 

 Bowman, M.J 

vs. 

Z. CHERRYHOLMES, et al., 

 Defendants. 

NOTICE

 Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written 

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after 

being served with a copy thereof. That period may be extended further by the Court on 

timely motion by either side for an extension of time. All objections shall specify the 

portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law in 

support of the objections. A party shall respond to an opponent’s objections within 

FOURTEEN DAYS after being served with a copy of those objections. Failure to make 

objections in accordance with this procedure may forfeit rights on appeal. See Thomas 

v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).