UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION AT DAYTON 

CHRISTOPHER HARPER, 

Plaintiff, 

vs. 

THE CITY OF TROTWOOD, et al., 

Defendants. 

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Case No. 3:18-cv-218 

District Judge Thomas M. Rose 

Magistrate Judge Sharon L. Ovington 

REPORT AND RECOMMENDATIONS1

Plaintiff Christopher Harper brings this case against Defendants the City of 

Trotwood and Officer Bethany Morrisett alleging under 42 U.S.C. § 1983, 18 U.S.C. § 

101, and Ohio law that she unlawfully arrested him and falsely charged him with 

obstructing official business. The case is presently before the Court sua sponte. 

This case began in June 2018 when Plaintiff filed his Complaint. (Doc. #1). After 

the case was transferred from Cincinnati, United States District Judge Thomas M. Rose 

issued a preliminary pretrial conference order, referring this case to the undersigned and 

setting forth the schedule. (Doc. #8). On March 22, 2019, Defendants filed Motion for 

Judgment on the Pleadings. (Doc. #11). Plaintiff asked for an extension of time to 

respond to Defendants’ Motion which this Court granted—extending the response 

deadline to April 19, 2019. (Doc. #12); Notation Order, 4/5/2019. Despite the extension, 

 

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 Attached is a NOTICE to the parties regarding objections to this Report and Recommendations. 
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Plaintiff did not file a response. At Defendants’ request, on April 11, 2019, this Court 

scheduled a discovery teleconference for April 16, 2019. Plaintiff’s counsel, Rex Allen 

Wolfgang, indicated that he was available at that time. (Doc. #13-8, PageID #83). On 

April 16, 2019, the Court and Defendants’ counsel waited for ten minutes for Plaintiff’s 

counsel to join the call; Plaintiff’s counsel did not. 

On April 17, 2019, Defendants filed a Motion to Compel Discovery. (Doc. #13). 

Plaintiff did not respond. On May 9, 2019, this Court granted Defendants’ Motion to 

Compel and ordered Plaintiff to respond to Defendants’ Request for Production of 

Documents on or before May 24, 2019. (Doc. #15). Plaintiff was placed on notice that if 

he did not obey the Order, he was subject to sanctions, including dismissal of the case. 

Further, this Court ordered Plaintiff to show cause, not later than May 24, 2019, why this 

case should not be dismissed for failure to prosecute. Plaintiff was placed on notice that 

if he did not respond to the Order, his case may be dismissed for lack of prosecution. 

Plaintiff did not obey the Order and did not respond. 

District courts have the inherent power to dismiss civil actions for want of 

prosecution to “manage their own affairs so as to achieve the orderly and expeditious 

disposition of cases.” Link v. Wabash R.R., 370 U.S. 626, 630-31 (1962); see also 

Carpenter v. City of Flint, 723 F.3d 700, 704 (6th Cir. 2013) (“It is well settled that a 

district court has the authority to dismiss sua sponte a lawsuit for failure to prosecute.”) 

(citations omitted); Carter v. City of Memphis, 636 F.2d 159, 161 (6th Cir. 1980) (“It is 

clear that the district court does have the power under Rule 41(b), Fed.R.Civ.P., to enter a 

sua sponte order of dismissal.”) (citation omitted). But, dismissal with prejudice for 
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failure to prosecute is “‘a harsh sanction which the court should only order in extreme 

situations showing a clear record of contumacious conduct by the plaintiff.’” Carpenter, 

723 F.3d at 704 (quoting Tung–Hsiung Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th 

Cir. 2005)). By comparison, “the sanction of dismissal without prejudice is a 

comparatively lenient sanction, and thus the controlling standards should be greatly 

relaxed ... because the dismissed party is ultimately not irrevocably deprived of his day 

in court.” Muncy v. G.C.R., Inc., 110 F. App’x 552, 556 (6th Cir. 2004) (citing 

Nwokocha v. Perry, 3 F. App’x 319, 321 (6th Cir. 2001) (per curiam)). 

To determine whether dismissal for failure to prosecute is appropriate, courts 

consider four factors: 

(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 of the action. 

Carpenter, 723 F.3d at 704 (quoting Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 589 

(6th Cir. 2001) (quotation marks omitted)). 

In the present case, Plaintiff is at fault. He did not respond to Defendants’ Motion 

for Judgment on the Pleadings or Motion to Compel, did not participate in the April 16, 

2019 discovery teleconference, and failed to respond to this Court’s Order to Show 

Cause. Turning to the second factor, Defendants suffered some prejudice as they have 

spent time and money on attempts to complete discovery. As for the third factor, this 

Court, in the Order to Show Cause, warned Plaintiff that his failure to obey the Order 
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could result in sanctions, including dismissal of his case, and that his failure to prosecute 

may result in dismissal of the case. Finally, although less drastic sanctions have not been 

imposed, any sanctions would have little effect on Plaintiff because it is unlikely he 

would respond to any sanctions. Taken together, these factors support the less-drastic 

sanction of dismiss without prejudice in this case. 

IT IS THEREFORE RECOMMENDED THAT: 

 1. Plaintiff’s Complaint be dismissed without prejudice; and 

 2. The case be terminated on the Court’s docket. 

July 22, 2019 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).