Oliver, III v. Mental Health Industry et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
EDDIE VAN OLIVER, III ,
Plaintiff,
v.
MENTAL HEALTH INDUSTRY, et al.,
Defendants.
Civil Action 2:25-cv-1380
Judge Edmund A. Sargus, Jr.
Magistrate Judge Chelsey M. Vascura
REPORT AND RECOMMENDATION
This matter is before the undersigned for a Report and Recommendation on Plaintiff’s
failure to comply with the Court’s December 1, 2025 and December 18, 2025 Orders requiring
him to either (1) move for leave to proceed in forma pauperis, or (2) pay the $405.00 filing fee.
(ECF Nos. 2, 3.) Plaintiff was expressly cautioned that “failure to comply . . . will result in
dismissal of this action for failure to prosecute.” (ECF No. 2.) To date, however, Plaintiff has
failed to comply with the Court’s Orders. He has neither paid the filing fee, nor filed a properly
supported motion for leave to proceed in forma pauperis, nor requested an extension of time to
do so.
Under the circumstances presented here, the undersigned recommends dismissal of
Plaintiff’s action under 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
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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 taxsupported 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 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).
Here, Plaintiff failed to comply with the Court’s Orders instructing him to pay the
$405.00 filing fee or file a properly supported motion for leave to proceed in forma pauperis.
(See ECF Nos. 2, 3.) Moreover, the Court explicitly cautioned Plaintiff that failure to comply
may result in dismissal of this action. See Stough v. Mayville Cmty. Schs., 138 F.3d 612, 615 (6th
Cir. 1998) (“[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 order of the
Court, which established a reasonable deadline 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”). Moreover, because Plaintiff has disregarded
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the Court’s 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 under Rule 41(b) 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 specified proposed findings or recommendations
to which objection is made. Upon proper objections, 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).
IT IS SO ORDERED.
/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE
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