UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

LOWELL N. PAYNE, JR., 

 Plaintiff, Civil Action 2:18-cv-646 

 Judge Algenon L. Marbley 

v. Magistrate Judge Chelsey M. Vascura 

 

MARK HOUK, et al., 

 Defendants. 

OPINION AND ORDER

 This matter is before the Court on Plaintiff Lowell N. Payne, Jr.’s Motion for Relief from 

the Court’s August 8, 2018 Order and Notice of Deficiency (“August 8 Order”). (ECF No. 6.) 

For the following reasons, Plaintiff’s Motion for Relief is DENIED, and this matter is 

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

I.

A. Rule 60(b) 

 Under Federal Rule of Civil Procedure 60(b), “the court may relieve a party or its legal 

representative from a final judgment, order, or proceeding.” Fed. R. Civ. P. 60(b) (emphasis 

added). Because the Court has not entered a final order in this matter, Plaintiff cannot rely on 

Rule 60(b). See Consolidation Coal Co. v. U.S. Dep’t of Interior, 43 F. Supp. 2d 857, 862-63 

(S.D. Ohio 1999). The Court therefore construes Plaintiff’s Motion as a request for 

reconsideration of an interlocutory order. 

 The Court has discretion to reconsider interlocutory orders at any time. See Leelanau 

Wine Cellars, Ltd. v. Black & Red, Inc., 118 F. App’x 942, 945-46 (6th Cir. 2004). Plaintiff, 
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however, has identified no clear error of law, has presented no newly discovered evidence, has 

provided no intervening change in controlling law, and has not identified any manifest injustice. 

Accordingly, the Court will not exercise its discretion to reconsider the August 8 Order. See 

Philips v. Teamsters Local Union, No. 3-:05-CV-292, 2007 WL 397011, at *1 (S.D. Ohio Jan. 

31, 2007). Plaintiff’s Motion for Relief is therefore DENIED. (ECF No. 15.) 

B. Failure to Submit Trust Statement or Pay the Required Filing Fee

 In its August 8, 2018 Order, the Court directed Plaintiff to either submit the required trust 

fund statement from his prison cashier or otherwise pay the requisite $400 filing fee by August 

22, 2018. (ECF No. 5.) The Court specifically warned Plaintiff that failure to submit the 

required documentation or pay the requisite fee would result in dismissal of this action for failure 

to prosecute. (Id. at 4.) 

 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.” Link v. 

Walbash 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 taxsupported courts and opposing parties.” Knoll v. AT & T, 176 F.3d 359, 63 (6th Cir. 1999). 

 Here, the Court specifically warned Plaintiff that failure to pay the requisite filing fee 

would result in the dismissal of his action. 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, however, failed to submit the 
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required trust fund statement or pay the filing fee. Moreover, in his Motion for Relief, Plaintiff 

expressly states that “Payne will not submit a prisoner petition or trust fund accounting.” (ECF 

No. 6 at 2.) The Court finds that Plaintiff’s failure to comply with a clear order of the Court 

establishing a deadline 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 to submit a properly supported motion to proceed in forma pauperis

motion or pay the filing fee within twenty days “constitute[d] bad faith or contumacious conduct 

and justifie[d] dismissal”). Accordingly, the Court DISMISSES THIS ACTION WITHOUT 

PREJUDICE pursuant to Rule 41(b). 

II.

 For these reasons, Plaintiff’s Motion for Relief (ECF No. 6) is DENIED, and this action 

is DISMISSED WITHOUT PREJUDICE pursuant to Rule 41(b) for failure to submit the 

required trust fund statement or pay the requisite filing fee. The Clerk is DIRECTED to 

terminate ECF Nos. 1 and 6 from the Court’s pending motions list. If Plaintiff intends to re-file 

this case, he must identify this action as a related case. 

IT IS SO ORDERED. 

DATED: August 24, 2018 s/Algenon L. Marbley ______ 

 ALGENON L. MARBLEY 

 UNITED STATES DISTRICT COURT