UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

TED MARCUM,

Plaintiff,

vs.

SHERIFF DAVE DUCHAK, et al.,

Defendants.

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Case No. 3:17-cv-00437

District Judge Walter H. Rice

Magistrate Judge Sharon L. Ovington

REPORT AND RECOMMENDATIONS1

What remains in this prisoner civil rights case brought pro se by Plaintiff Ted 

Marcum is capsulized in the following:

In the Court’s view, Plaintiff has stated a plausible claim that the Miami 

County Jail’s policy of not providing pretrial detainees with the ability to 

make free, direct phone calls during the booking process impermissibly 

burdens his fundamental right to counsel of his choice and to reasonable bail. 

He has also stated a plausible claim that the policy has a discriminatory effect 

on indigent pretrial detainees. In addition, Plaintiff has sufficiently alleged 

that this policy, established by Sheriff Duchak, is the moving force behind the 

alleged constitutional violations.

(Doc. #73, PageID #s 815-16).

Defendant presently moves to dismiss this case for failure to prosecute. (Doc. #s 

106, 113). Plaintiff opposes dismissal. (Doc. #111).

When this case began Plaintiff was a pretrial detainee at the Miami County Jail in 

Miami County, Ohio where he remained until he finished serving a 180-day sentence. (Doc. 

1 Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.

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#73, PageID #807). Presumably, this occurred on or around April 13, 2018 when Plaintiff

notified the Court of his address change to 185 Dye Mill Road, Troy, Ohio 45373. (Doc. 

#58, PageID #729). At some point after this, he became peripatetic, alternating his address 

of record between the Butler County Jail and his home in Troy, Ohio. (Doc. #90, PageID

#899). This, and some lethargy by Plaintiff, has led to problems moving the case forward. 

See Doc. #s 86, 89. Plaintiff’s address changes prevented Defendant’s counsel from 

contacting him about submitting a joint Rule 26(f) Report. This forced Defendant into filing 

his own Rule 26(f) Report three times in order to comply with deadlines set by the Court. 

(Doc. #s 76, 88, 97).

By April 3, 2019, the case had stalled due to Plaintiff’s address problems. 

Consequently, the Court ordered him to show cause why the case should not be dismissed 

with prejudice due to his failure to prosecute. (Doc. #89). The Court explained:

Plaintiff has a duty to keep the Court and opposing counsel informed of any

address changes. Notably, this is the second time that counsel for Defendant 

has had to file a unilateral Rule 26(f) Report because Plaintiff has failed to 

comply with his obligations. See Doc. #76. Although the Court is 

sympathetic to the demands placed on prose litigants, failure to comply with 

the Court’s Orders is unacceptable and will not be tolerated.

Id. at 892.

Plaintiff did not comply with the April 3rd Order and, as a result, on April 24, 2019, 

the Court ordered him to file his own Rule 26(f) Report. The Court also placed him on 

notice that if he failed to file his Report, “or even should he file same, should said filing be 

defective in one or more particulars, the captioned cause will be dismissed, for want of 

prosecution.” (Doc. #91, PageID #899). Plaintiff thereafter filed his Rule 26(f) Report. 

(Doc. #93).

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In early August 2019, Plaintiff filed a notice of change of address, disclosing his 

address as 185 Dye Mill Road, Troy, Ohio 45373. (Doc. # 95). 

On December 4, 2019, District Judge Rice held a telephone conference with the 

parties and granted Defendant’s Motion to Modify Case Schedule and reset the trial date for

December 7, 2020. (Doc. #104).

On January 13, 2020, Defendant served Plaintiff, by First Class Mail, with his first 

set of interrogatories and first request for production of documents. (Doc. #105). 

Defendant sent his discovery requests to Plaintiff at his address of record—185 Dye Mill 

Road in Troy, Ohio. But Defendant again ran into problems. On March 2, 2020, the Postal 

Service returned Defendant’s discovery requests to him marked address not known (ANK). 

(Doc. #106, PageID #1205).

Defendant contends that dismissal of this case is warranted for Plaintiff’s failure 

prosecute because he has failed to update the Court with his mailing address on multiple 

occasions and because the Court has admonished and warned him on several occasions that 

any further failure to meet this obligation would result in dismissal of this case. Defendant 

asserts that Plaintiff has ignored these warnings. Defendant further contends that he has

suffered prejudice caused by Plaintiff’s failures to update his contact information, and 

Defendant has been forced to litigate this case with almost no access to Plaintiff, thus 

needing to waste time and resources tracking him down. Defendant asserts that because he 

is no longer residing at his address of record, they are unable to serve him with basic 

discovery requests.

Rule 41(b) of the Federal Rules of Civil Procedure permits a defendant to move to 

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dismiss “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order

....” Judge Rice has thoroughly explored Rule 41(b)’s boundaries:

The authority to dismiss a case under Rule 41(b) “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. American Tel. & Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999) (quotation 

omitted). District courts are permitted substantial discretion in determining 

whether dismissal is appropriate. Id. However, the Sixth Circuit has 

emphasized that dismissal is a “harsh” remedy reserved for “extreme 

situations where a plaintiff has engaged in a clear pattern of delay or 

contumacious conduct.” Holt v. Pitts, 619 F.2d 558, 562 (6th Cir. 1980) 

(reversing order of dismissal in § 1983 action). “The sanction of dismissal is 

appropriate only if the attorney’s actions amounted to failure to prosecute and 

no alternative sanction would protect the integrity of the pretrial process.”

Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 594 (6th Cir. 2001) (emphasis 

in original) (quotation omitted). The Sixth Circuit has often reversed district 

court decisions, dismissing a complaint under Rule 41(b), absent a showing of 

bad faith or notice to the plaintiff that the court is contemplating involuntary 

dismissal. E.g., Nader v. Land, 433 F.3d 496, 501-02 (6th Cir. 2006) 

(reversing lower court’s dismissal and citing other similarly reversed cases).

Offill v. Pennsylvania Life Ins. Co., 243 F.R.D. 276, 284 (S.D. Ohio 2007).

Although there has certainly been delay in this case caused by Plaintiff’s failure to 

keep Defendant and the Court apprised of his address, the present circumstances—

Plaintiff’s failure to timely respond to Defendant’s written discovery requests—has not been 

the result of similar omissions, or bad-faith conduct, by him.

On January 13, 2020, Plaintiff lived at his address of record, 185 Dye Mill Road in 

Troy, Ohio. Defendant’s counsel, therefore, correctly sent his discovery requests to Plaintiff 

at that address by certified mail. Plaintiff’s responses were due within thirty days after they 

were served. See Fed. R. Civ. P. 33(b)(2), 34(b)(2). But, as described above, something 

went wrong with the mailing. It did not reach Plaintiff at his address of record, and 

Defendant received his discovery requests back from the Postal Service on March 2, 2020 

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marked address not known. See Doc. #106, PageID #s 1200, 1205. Defendant concluded 

from this that Plaintiff had again “failed to notify the Court and Defendant’s counsel of his 

changed mailing address ....” Id. at 1200. Although this was a reasonable inference, it 

turned out to be incorrect. Plaintiff swears that he had not changed his address. See Doc. 

#111, PageID #s 1447. He later checked with the Postal Service and learned that if no one 

responds to the mail carrier’s knock on the addressee’s door, which is the customary 

practice when delivering certified mail, the mail carrier will leave a note attached to the 

door. The note informs the addressee of the existence of the certified mail and that it is 

being held at the Post Office.

This explains why Defendant’s counsel did not receive the certified mail back until 

March 2—the Postal Service was holding it. Plaintiff, however, swears he never received 

any note or notice from the Postal Service about Defendant’s certified mail. See id. at 1448. 

Plaintiff points out that he did receive at his Dye Mill Road address a copy of the Court’s 

Notice to him about Defendant’s Motion to Dismiss. Id. at 1449. This apparently was when 

he first learned about the unsuccessful certified mailing. 

It is possible that Plaintiff did not receive a note— assuming the mail carrier left 

one—at his Dye Mill Road address concerning Defendant’s certified mail. If his statements 

are credited, he did not. If his statements are overlooked, the question—whether he actually 

received a note left by a mail carrier—remains unanswered on the present record. In these 

circumstances, and given the harshness of dismissal for failure to prosecute, this is not an 

“‘extreme situation’” in which Plaintiff “‘has engaged in a clear pattern of delay or 

contumacious conduct.’” Offill, 243 F.R.D. at 284 (quoting, Holt, 619 F.2d at 562).

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Defendant lastly contends that Plaintiff’s Memorandum in Opposition to Defendant’s

Motion to Dismiss for Failure to Prosecute was untimely. Relying on Fed. R. Civ. P. 

5(d)(2), Defendant reasons that a document is not filed until the Clerk of Court receives it. 

Defendant sees Plaintiff’s untimely filing as again demonstrating his unwillingness to 

comply with Court Orders and deadlines, further revealing his clear pattern of delay. 

The Court notified Plaintiff that he had until March 27, 2020 to file his response to 

Defendant’s Motion to Dismiss. (Doc. #107). This was twenty-four days after Defendant 

served his Motion on Plaintiff by certified mail. (Doc. #106, PageID# 1204). Yet, Plaintiff 

gets the benefit of three additional days—until March 30, 2020—because Defendant served 

Plaintiff by mail. Id.; see Fed. R. Civ. P. 6(d). This means that when the Clerk docketed 

Plaintiff’s Memorandum in Opposition on March 30, 2020, it was timely filed. 

Accordingly, Defendant’s Motion to Dismiss lacks merit.

IT IS THEREFORE RECOMMENDED THAT:

Defendant Sheriff Dave Duchak’s Motion to Dismiss for Failure to Prosecute (Doc. 

#106) be DENIED.

May 12, 2020 s/Sharon L. Ovington

Sharon L. Ovington

United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS

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

objections to the proposed findings and recommendations within FOURTEEN days after 

being served with this Report and Recommendations. Such objections shall specify the 

portions of the Report objected to and shall be accompanied by a memorandum of law in 

support of the objections. If the Report and Recommendation is based in whole or in part 

upon matters occurring of record at an oral hearing, the objecting party shall promptly 

arrange for the transcription of the record, or such portions of it as all parties may agree 

upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise 

directs. A party may respond to another party’s objections within FOURTEEN days after 

being served with a copy thereof. 

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, 

949-50 (6th Cir. 1981). 

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