Fitts v. Cool

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JONATHAN DARNELL FITTS,
Plaintiff,
vs.
LT. CRABTREE, et al.,
Defendants.
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Case No. 2:24-cv-01040
District Judge Edmund A. Sargus, Jr.
Magistrate Judge Caroline H. Gentry
REPORT AND RECOMMENDATION
This civil rights case is before the undersigned Magistrate Judge upon a review of
the docket. The matter began in March 2024. (Doc. No. 1.) The undersigned ordered
Plaintiff to file an amended complaint in July 2024. (Doc. No. 7.) Plaintiff, a state
prisoner proceeding without the assistance of counsel, filed an Amended Complaint, but
it was docketed in a different case. (See Doc. No. 12.1) After these and other procedural
issues were resolved, the undersigned screened the now-properly-docketed Amended
Complaint (Doc. No. 13) and allowed Plaintiff to proceed with some of his claims. (See
Order and Report and Recommendation, Doc. No. 16.) Plaintiff’s other claims were later
dismissed. (See Order Adopting Report and Recommendation, Doc. No. 17.)
Plaintiff’s remaining claims have not proceeded any further, however, because
Plaintiff has failed to provide the completed summonses and U.S. Marshal forms needed
1 This situation is discussed further in District Judge Sargus’ October 16, 2024 Order in Fitts v. Cool,
Case No. 2:24-cv-3887 (Doc. No. 7).
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to serve the remaining Defendants with process. The undersigned twice ordered Plaintiff
to provide the forms. (Order and Report and Recommendation, Doc. No. 16 at PageID
79-80 [setting November 3, 2025 deadline]; Order Concerning Service Forms, Doc. No.
18 [setting December 19, 2025 deadline].) The Clerk of Court twice provided blank
forms for Plaintiff to use. (Doc. No. 16 at PageID 81; Doc. No. 18 at PageID 88.)
The undersigned warned Plaintiff that his case may be dismissed if he did not
return the completed forms. (See Doc. No. 16 at PageID 80 [“Plaintiff is further advised
that failure to comply with this Order may result in the dismissal of this action for
want of prosecution.”].) (emphasis in original). In the Order Concerning Service Forms,
the undersigned expressly advised Plaintiff that:
This case cannot proceed any further unless Defendants are served with
process. That cannot occur until Plaintiff provides the required service
forms. Accordingly, Plaintiff is again ORDERED to submit the required
service forms. He shall submit “completed U.S. Marshal forms for
Defendants Gear, Sexton, Penix, and Lowry; and completed summons
forms for Defendants Crabtree, Gear, Sexton, Penix, and Lowry.” (Doc.
No. 16 at PageID 80.) Plaintiff shall submit these forms by December 19,
2025. If he fails to submit them by that date and does not otherwise respond
to this Order, the undersigned will recommend that the Court dismiss his
case for failure to prosecute.
(Doc. No. 18 at PageID 88) (emphasis in original). To date, Plaintiff has not provided any
service forms, and none of the remaining Defendants have been served with process. The
docket reflects that Plaintiff has not taken any action in the case since September 2024.
(See Doc. No. 10.)
Rule 41(b) of the Federal Rules of Civil Procedure “permits the court to
involuntarily dismiss an action if a plaintiff fails to prosecute his case or to comply with a
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court order.” Rogers v. City of Warren, 302 F. App’x 371, 375 & n.4 (6th Cir. 2008).
“District courts also have the inherent power to sua sponte dismiss civil actions for want
of prosecution [in order to] to manage their own affairs [and] achieve the orderly and
expeditious disposition of cases.” Link v. Wabash R.R., 370 U.S. 626, 630-31 (1962).
Here, Plaintiff’s failures to comply with the Court’s orders warrant dismissal of the case.
The undersigned also notes that the 90-day deadline for service of process set by
Rule 4(m) has elapsed. That rule provides:
Time Limit for Service. If a defendant is not served within 90 days after
the complaint is filed, the court--on motion or on its own after notice to the
plaintiff--must dismiss the action without prejudice against that defendant
or order that service be made within a specified time. But if the plaintiff
shows good cause for the failure, the court must extend the time for service
for an appropriate period.
Fed. R. Civ. P. 4(m). Ninety days from October 2, 2025 (when the undersigned allowed
Plaintiff to proceed with some of his claims) was December 31, 2025. As Plaintiff has not
shown good cause for the failure of service, the case should also be dismissed for this
reason.
The undersigned Magistrate Judge therefore RECOMMENDS that the Court
DISMISS this case for failure to prosecute and/or failure of service of process. The
undersigned further RECOMMENDS that the Court CERTIFY that an appeal of any
order adopting this Report and Recommendation would not be taken in good faith and
therefore DENY Plaintiff leave to appeal in forma pauperis. See 28 U.S.C. § 1915(a)(3);
McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).
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Plaintiff may file objections to these recommendations as outlined in the section
below. He is reminded that he must notify the Court if his mailing address changes while
the case is pending.
IT IS SO ORDERED.
/s/ Caroline H. Gentry
Caroline H. Gentry
UNITED STATES MAGISTRATE JUDGE
Notice Regarding Objections to this Report and Recommendation (“R&R”)
If any party objects to this R&R, the party may serve and file specific, written
objections to it within fourteen (14) days after being served with a copy thereof. Fed. R.
Civ. P. 72(b). All objections shall specify the portion(s) of the R&R objected to and shall
be accompanied by a memorandum of law in support of the objections. The Court may
extend the fourteen-day objections period if a timely motion for an extension of time is
filed.
A District Judge of this Court will make a de novo determination of those portions
of the R&R 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 R&R will result in
a waiver of the right to have the District Judge review the R&R de novo, and will also
operate as a waiver of the right to appeal the decision of the District Court adopting the
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R&R. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947
(6th Cir. 1981).
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