IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

KEVIN J. SHEA, 

Plaintiff, 

 Civil Action 2:18-cv-00555 

 Judge James L. Graham 

 v. Chief Magistrate Judge Elizabeth P. Deavers 

 

COMMISSIONER FOR SOCIAL SECURITY, 

 Defendant. 

REPORT AND RECOMMENDATION 

 This matter is before the United States Magistrate Judge for a Report and 

Recommendation on the Court’s December 19, 2018 Show Cause Order. (ECF No. 16.) For the 

following reasons, it is RECOMMENDED that the Court DISMISS Plaintiff’s action WITH 

PREJUDICE pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute. 

I. 

 On June 7, 2018, the Court ordered the Commissioner to file and serve a certified copy of 

the administrative record within sixty days and Plaintiff to file his Statement of Errors within 

forty-five days after the administrative record was filed. (ECF No. 4.) On October 29, 2018, 

the Commissioner filed a certified copy of the administrative record. (ECF No. 14.) Thus, 

Plaintiff’s Statement of Errors was due on December 13, 2018. 

 Because Plaintiff failed to timely file his Statement of Errors, on December 19, 2018, the 

Court ordered him to show cause within fourteen days why this case should not be dismissed 

with prejudice for want of prosecution pursuant to Federal Rule of Civil Procedure 41(b). (ECF 
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No. 16.) In the Show Cause Order, the Court specifically cautioned Plaintiff that “failure to 

comply with [the Show Cause Order] will result in dismissal of his action with prejudice.” (Id.) 

Before Plaintiff’s December 27, 2018 deadline to respond, however, there was a lapse of 

congressional appropriations funding the federal government. Subsequently, this case was 

stayed by operation of Second Amended General Order 18-02, which held in abeyance all civil 

matters involving the United States as a party due to the funding lapse. 

On January 29, 2019, because the conditions necessitating Second Amended General 

Order 19-02 had abated, Chief United States District Judge Edmund A. Sargus, Jr. issued 

General Order 19-02, which lifted General Order 18-02 and the stay previously imposed. In 

light of the foregoing, this Court extended the deadline for Plaintiff to file a Response to the 

Court’s Order to Show Cause to February 11, 2019. (ECF No. 17.) To date, Plaintiff has not 

responded to the Show Cause Order. 

II. 

 Under the circumstances presented in the instant case, the Undersigned recommends 

dismissal of Plaintiff’s action with prejudice pursuant to Rule 41(b). The Court’s inherent 

authority to dismiss a plaintiff’s action because of their failure to prosecute is expressly 

recognized in Rule 41(b), which authorizes involuntary dismissal for failure to prosecute or to 

comply with rules of procedure or court orders. See Fed. R. Civ. P. 41(b); Chambers v. Nasco, 

Inc., 501 U.S. 32, 49 (1991) (noting that a “federal district court has the inherent power to 

dismiss a case sua sponte for failure to prosecute[.]”). “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, 363 (6th Cir. 1999) 

(citation omitted) (internal quotations omitted). 
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The Sixth Circuit directs the district courts to consider the following four factors in 

deciding whether to dismiss an action for failure to prosecute under Rule 41(b): 

(1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether 

the adversary was prejudiced by the dismissed party’s conduct; (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. 

Schafer v. City of Defiance Police Dep’t., 529 F.3d 731, 737 (6th Cir. 2008) (citing Knoll, 176 

F.3d at 363). “Although typically none of the factors is outcome dispositive, . . . a case is 

properly dismissed by the district court where there is a clear record of delay or contumacious 

conduct.” Id.

III. 

 Here, the record demonstrates such delay. After Plaintiff failed to file his Statement of 

Errors, the Court ordered him to show cause why this case should not be dismissed with 

prejudice for want of prosecution. Furthermore, the Court extended the deadline for Plaintiff to 

file a response to the Show Cause Order when his deadline overlapped with the lapse of 

congressional appropriations. Plaintiff still failed to file a Response. The original Order and the 

extension provided Plaintiff with adequate notice of the Court’s intention to dismiss for failure to 

prosecute and supplied him with a reasonable period of time to comply. Both also provided him 

with an opportunity to show cause why this case should not be dismissed with prejudice for want 

of prosecution. Because Plaintiff has missed deadlines and disregarded Court orders, the 

Undersigned concludes that no alternative sanction would protect the integrity of the pretrial 

process. The Undersigned therefore RECOMMENDS that the Court DISMISS Plaintiff’s 

action WITH PREJUDICE under Rule 41(b). 
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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 

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: February 19, 2019 /s/ Elizabeth A. Preston Deavers . 

 ELIZABETH A. PRESTON DEAVERS 

CHIEF UNITED STATES MAGISTRATE JUDGE