UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

GARY RAYMOND FOX, 

Plaintiff, 

 Civil Action 2:17-cv-880 

 Judge Algenon L. Marbley 

v. Magistrate Judge Chelsey M. Vascura 

MANAGER, 

In Town Motel Suites, 

Defendant. 

REPORT AND RECOMMENDATION

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

on the Court’s October 11, 2017 Order directing Plaintiff to pay the filing fee or submit a 

completed in forma pauperis affidavit. (ECF No. 2.) For the reasons that follow, it is 

RECOMMENDED that Plaintiff’s action be DISMISSED WITH PREJUDICE pursuant to 

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

I. 

 Plaintiff filed this action on October 10, 2017. (ECF No. 1.) Plaintiff had neither paid 

the filing fee nor submitted the required materials in support of his application to proceed in forma 

pauperis and was therefore ordered to either pay the fee or submit a completed affidavit within 

thirty days. (October 11, 2017 R&R, ECF No. 2.) That Order further advised Plaintiff that that 

failure to timely comply with the Order could result in dismissal of this action for failure to 

prosecute.” (Id.) Plaintiff failed to do so. On November 11, 2017, the undersigned issued a 

Report and Recommendation, recommending that Plaintiff’s action be dismissed with prejudice 
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pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute. (ECF No. 4.) That 

Report and Recommendation was adopted on December 13, 2017. (ECF NO. 5.) Subsequently, 

upon receipt of mail returned to the Court as undeliverable, the Court became discovered that 

Plaintiff’s address had been entered incorrectly on the docket. (ECF Nos. 7 & 8.) Consequently, 

the Court vacated its previous Order adopting the Report and Recommendation to allow Plaintiff 

time to respond to the undersigned’s first Order and Deficiency Notice. (ECF No. 2.) 

 To date, Plaintiff has failed to pay the filing fee or submit a completed affidavit. 

II. 

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

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 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. Wabash 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). 

 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. 
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Schafer v. City of Defiance Police Dept., 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 not complied with the Court’s express order that he pay the $400 filing 

fee or submit a completed affidavit if he wished to proceed, even after being granted an extension 

until January 29, 2018 to do so. (Dec. 29, 2017 Order, ECF No. 9.) Moreover, the Court 

explicitly cautioned Plaintiff numerous times 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 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. 

It is therefore RECOMMENDED that the Court DISMISS THIS ACTION WITH 

PREJUDICE under Rule 41(b). 
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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 

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