Radabaugh v. Mortamir et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
RYAN D. RADABAUGH,
Plaintiff,
v.
KEN MORTAMIR, et al.,
Defendants.
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Case No. 2:26-cv-00868
Chief Judge Sarah D. Morrison
Magistrate Judge S. Courter M. Shimeall
REPORT AND RECOMMENDATION
This Court ordered Plaintiff to show cause by August 31, 2026, as to why the Undersigned
should not recommend dismissal of this action under Federal Rule of Civil Procedure 41(b) for
failure to prosecute due to his failure to cure the filing deficiencies and comply with Court orders.
(ECF No. 3.) 	On September 11, 2026, Plaintiff filed a document that the Court construed as a
Motion for an Extension of Time. (ECF No. 4.) The Court granted Plaintiff additional time until
October 9, 2026, to file a response to the show cause order.
That second show cause deadline has passed, and Plaintiff has not submitted the requisite
documents needed to cure his filing deficiencies or otherwise responded to the show cause order.
Thus, under these circumstances, the Undersigned recommends dismissal of Plaintiff’s action
under Rule 41(b) for failure to prosecute and comply with Court orders.
The Court’s inherent authority to dismiss a plaintiff’s action 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.” 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
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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) (internal citations omitted).
The United States Court of Appeals for the Sixth Circuit directs 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).
Upon review, the Undersigned finds that dismissal for failure to prosecute is warranted
here. First, Plaintiff has failed to comply with this Court’s orders, specifically to address the filing
deficiencies. (See ECF Nos. 2, 3, and 5.) Plaintiff’s continued failure to timely comply with the
clear orders 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”). And, as a practical matter, Plaintiff’s
failure to provide a motion to proceed in forma pauperis, a filing fee, or service documents prevents
this case from proceeding any further.
Moreover, the Court had previously cautioned him more than once that failure to comply
with the Court’s orders regarding timely submission of these could result in a recommendation of
dismissal for failure to prosecute. 	(See e.g., ECF Nos. 3, 5); see also Stough v. Mayville Cmty.
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Schs., 138 F.3d 612, 615 (6th Cir. 1998) (explaining that “[p]rior notice, or the lack thereof, is . . .
a key consideration” in whether dismissal under Rule 41(b) is suitable).
Further, because Plaintiff has missed these deadlines and disregarded the Court’s orders,
the Undersigned concludes that no alternative sanction would protect the integrity of the pretrial
process. 	See, e.g., McDougleh v. Ohio Reformatory for Women, No. 2:25-CV-0028, 2026 WL
295435, at *2 (S.D. Ohio Feb. 4, 2026), report and recommendation adopted, No. 2:25-CV-28,
2026 WL 754057 (S.D. Ohio Mar. 17, 2026) (recommending dismissal for failure to prosecute
when plaintiff failed to provide required service documents).
For these reasons, it is therefore RECOMMENDED that the Court DISMISS THIS
ACTION WITHOUT PREJUDICE under Federal Rule of Civil Procedure 41(b) for failure to
prosecute. Finally, it is RECOMMENDED that the Court order Plaintiff to list this action as a
related case if he re-files.
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).
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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/ S. Courter M. Shimeall
S. COURTER M. SHIMEALL
UNITED STATES MAGISTRATE JUDGE
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