UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

ARTURO GALVAN, 

Plaintiff, 

 Civil Action 2:17-cv-1053 

 Judge George C. Smith 

v. Magistrate Judge Chelsey M. Vascura 

 

FRANKLIN COUNTY SHERIFF 

DEPARTMENT, et al., 

Defendants. 

 

REPORT AND RECOMMENDATION

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

on the Court’s April 11, 2018 Order and Third Notice of Deficiency where the Court directed 

Plaintiff to pay the filing fee or submit proper documentation showing he is unable to pay the fee. 

(ECF No. 4.) For the reasons that follow, it is RECOMMENDED that Plaintiff’s action be 

DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule of Civil Procedure 41(b) for 

failure to prosecute. 

I. 

 Plaintiff filed this action on December 6, 2017. (ECF No. 1.) Because Plaintiff had not 

paid the filing fee, he was ordered to either pay the $400 filing fee or submit an application to 

proceed in forma pauperis under § 1915(a), including the required affidavit and certified trust fund 

statement from his prison’s cashier. (January 3, 2017 Order, ECF No. 2.) Plaintiff was also 

cautioned that failure to comply with the Court’s Order would result in dismissal of his case. (Id.) 

Plaintiff filed an Application to Proceed In Forma Pauperis on January 22, 2018. (ECF 
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No. 3.) However, this application failed to comply with the Court’s previous instructions. As 

the Court indicated in its Second Deficiency Order (ECF No. 4), Plaintiff failed to include a 

certified copy of his prison trust fund account statement. (Id. at 2.) In its September 25, 2017 

Order, the Court directed Plaintiff to “either (1) pay the $400 filing and administrative fee; or (2) 

comply with this Second Notice of Deficiency by filing a completed and signed certified copy of 

the prison trust fund account statement ON OR BEFORE FEBRUARY 25, 2018.” (January 25, 

2018 Order 2, ECF No. 4.) The Court again cautioned Plaintiff that failure to comply with its 

Order would result in dismissal of the case for want of prosecution. (Id.) 

Plaintiff filed a second Application to Proceed In Forma Pauperis on February 26, 2018. 

(ECF No. 5). Plaintiff’s documentation remained deficient because he failed to include the 

required statement of account showing the previous six months of transactions. Moreover, the 

documentation that was attached to Plaintiff’s Application indicated that he had a balance of 

$3,288.48 in his account as of February 11, 2018. Because Plaintiff’s documentation was both 

deficient and indicated that he could pay the filing fee, the Court directed him to “either pay the 

Court’s $400.00 filing fee or submit the proper documentation showing that he is unable to pay the 

fee WITHIN THIRTY DAYS.” (April 11, 2018 Order 2, ECF No. 9.) The Court again 

cautioned Plaintiff that failure to comply with its Order would result in dismissal of the case for 

want of prosecution. (Id.) 

To date, Plaintiff has failed to comply with the Court’s April 11, 2018 Order. He has 

neither paid the filing fee nor submitted proper documentation showing that he is unable to pay the 

fee. 

II. 

 Under the circumstances presented in the instant case, the Undersigned recommends 
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dismissal of Plaintiff’s action pursuant to Rule 41(b). The Court’s inherent authority to dismiss a 

plaintiff’s action with prejudice because of his failure to prosecute is expressly recognized in Rule 

41(b), which provides in pertinent part: “If the plaintiff fails to prosecute or to 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.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, 363 (6th Cir. 1999) (internal citations omitted). 

 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.’” 

Schafer, 529 F.3d at 737 (quoting Knoll, 176 F.3d at 363). 

III.

 Here, Plaintiff has failed to comply with three separate Court Orders instructing him to 

either pay the $400 filing fee or submit a signed affidavit accompanied by a completed certified 

prisoner trust fund statement. (See ECF Nos. 2 & 4.) Moreover, the Court explicitly cautioned 
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Plaintiff in all three Orders that failure to comply would result in dismissal of this action for failure 

to prosecute pursuant to Rule 41(b). See Stough v. Mayville Cmty. Schs., 138 F.3d 612, 615 (6th 

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

dismissal under rule 41(b) is appropriate). Plaintiff’s failure to timely comply with the clear 

orders of the Court, which established reasonable deadlines for compliance, constitutes bad faith 

or contumacious conduct. See Steward v. Cty. of Jackson, Tenn., 8 F. App’x 294, 296 (6th Cir. 

2001) (concluding that a plaintiff’s failure to comply with a court’s order “constitute[d] bad faith 

or contumacious conduct and justifie[d] dismissal”). Because Plaintiff has missed deadlines and 

disregarded Court orders, the Undersigned concludes that no alternative sanction would protect the 

integrity of the pretrial process. Nevertheless, the Undersigned concludes that dismissal with 

prejudice and requiring Plaintiff to pay the filing fee is too harsh a result. 

It is therefore RECOMMENDED that the Court DISMISS THIS ACTION WITHOUT 

PREJUDICE under Rule 41(b). It is further RECOMMENDED that the Court not assess the 

filing fee in this matter. Finally, it is RECOMMENDED that the Court order Plaintiff to list 

2:17-cv-1053 as a related case if he re-files this action. 

PROCEDURE ON OBJECTIONS 

If any party objects to this Report and Recommendation, that party may, within fourteen 

(14) days of the date of this Report, file and serve on all parties written objections to those specific 

proposed findings or recommendations to which objection is made, together with supporting 

authority for the objection(s). A Judge of this Court shall make a de novo determination of those 

portions of the Report or specified proposed findings or recommendations to which objection is 

made. Upon proper objections, a Judge of this Court may accept, reject, or modify, in whole or in 
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part, the findings or recommendations made herein, may receive further evidence or may 

recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). 

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

Recommendation will result in a waiver of the right to have the District Judge review the Report 

and Recommendation de novo, and also operates as a waiver 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); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

 /s/ Chelsey M. Vascura 

CHELSEY M. VASCURA 

UNITED STATES MAGISTRATE JUDGE