Tomlinson, Jr. v. Homeland Security Investigations et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JERRY W. TOMLINSON, JR.,
Plaintiff, 	Case No. 2:25-cv-1377
v. 	Chief District Judge Sarah D. Morrison
Magistrate Judge Kimberly A. Jolson
HOMELAND SECURITY
INVESTIGATIONS, et al.,
Defendants.
REPORT & RECOMMENDATION
This matter before the Court is Plaintiff’s failure to respond to multiple deficiency orders.
For the following reasons, the Undersigned RECOMMENDS Plaintiff’s Complaint (Doc. 1) be
DISMISSED for failure to prosecute.
Plaintiff filed this complaint in November 2025. 	Since then, the Court twice ordered
Plaintiff to refile his complaint because some of the attached exhibits seemingly reveal an
individual’s full social security number. (Docs. 2, 3). The Court also ordered Plaintiff either to
pay the filing fee or to file a motion to proceed without prepayment of fees. (Id.). To date, Plaintiff
has done neither. The Court will not allow this case to languish any longer.
The Court’s inherent authority to dismiss an action because of a party’s failure to prosecute
is expressly recognized in Rule 41(b), which authorizes involuntary dismissal for failure to
prosecute or to comply with rules of procedure or court orders. See Fed. R. Civ. P. 41(b); see also
Chambers v. Nasco, Inc., 501 U.S. 32, 49 (1991) (noting that “a federal district court has the
inherent power to dismiss a case sua sponte for failure to prosecute” as recognized in Link v.
Wabash R.R. Co., 370 U.S. 626, 629–32 (1962)). “This measure is available to the district court
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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, 63 (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.
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).
On balance, the factors set forth in Schafer support dismissal. First, despite being afforded
14 days to do so, Plaintiff failed to refile his complaint. And despite having 30 days to pay the
filing fee or move to proceed without prepayment of fees, Plaintiff failed to do so. And then, he
failed to respond to the Court’s Deficiency Order by the imposed deadline. What’s more, because
the Deficiency Order centers on Plaintiff’s complaint and his failure to pay the filing fee, Plaintiff
has essentially brought this case to a halt before it can even begin. Because of Plaintiff’s actions
(or lack thereof), the case cannot proceed. 	This demonstrates, to some extent, Plaintiff has “a
reckless disregard for the effect of his conduct on [the Court’s] proceedings[,]” and thus acted with
willfulness, bad faith, or fault. Schafer, 529 F.3d at 737 (quoting Wu v. T.W. Wang, Inc., 420 F.3d
641, 643 (6th Cir. 2005)).
Moreover, as this Court has said, “[f]ailure to comply with this Court’s orders in several
instances indicates willfulness.” Manning v. Diversified Collection Servs., Inc., No. 3:09-CV-153,
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2010 WL 1438735 (S.D. Ohio Apr. 9, 2010). 	As detailed above, Plaintiff has, on several
occasions, refused to comply with this Court’s clear instructions for months. This clear record of
delay and noncompliance demonstrates Plaintiff has “a reckless disregard for the effect of his
conduct on [the Court’s] proceedings[,]” and thus acted with willfulness, bad faith, or fault.
Schafer, 529 F.3d at 737 (quoting Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005)). The
Undersigned cannot help but infer that Plaintiff’s behavior will continue if the Court were to ask
him to re-file his complaint, pay the filling fee, or move to proceed without prepayment, for a third
time. There is no reason to believe that such an exercise would be more than a drain on judicial
resources.
Considering the second factor, because Defendants have not been served, there is little risk
of prejudice. 	Cf. Wilson v. T.D.O.C., No. 1:17-CV-348, 2018 WL 4006781, at *2 (E.D. Tenn.
Aug. 22, 2018) (dismissing a case for failure to prosecute even though the second factor weighed
against dismissal). But the remaining considerations nonetheless weigh in favor of dismissal. The
Court has previously warned Plaintiff to comply with her orders, or else the action could result in
dismissal. 	(Doc. 3). 	And the Undersigned considered less drastic sanctions than dismissal but
concludes that any such effort would be futile given Plaintiff’s failure to participate in these
proceedings. 	Grange Mut. Cas. Co. v. Mack, 270 F. App’x 372, 377 (noting that a court must
simply “consider” lesser sanctions but is not required to actually issue such sanctions before
granting a dismissal for failure to prosecute).
In view of the foregoing, the Undersigned concludes Plaintiff has abandoned this action.
Although this Court has a “favored practice of reaching a disposition on the merits,” the Court’s
“need to manage its docket [and] the interest in expeditious resolution of litigation” outweigh
allowing this case to linger. Little v. Yeutter, 984 F.2d 160, 162 (6th Cir. 1993).
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For the foregoing reasons, the Undersigned RECOMMENDS Plaintiff’s Complaint (Doc.
1) be DISMISSED for failure to prosecute.
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 District Judge of this Court shall make a de novo determination
of those portions of the Report or specific proposed findings or recommendations to which
objection is made. 	Upon proper objection, a District 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).
Date: February 18, 2026 	/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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