Cook v. Trostel et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOSHUA COOK,
Plaintiff,
Case Number 2:23-cv-2314
v. 	JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge S. Courter M. Shimeall
KATHERINE TROSTEL, et al.,
Defendants.
ORDER
This matter is before the Court on the Report and Recommendation issued by the
Magistrate Judge on February 3, 2026. (ECF No. 110.) The Magistrate Judge recommends that
this case be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b) for
failure to prosecute and that Defendants’ Cross Motion for Summary Judgment (ECF No. 103)
be denied as moot. (ECF No. 110, PageID 1369.)
Plaintiff Joshua Cook, proceeding pro se, filed this action pursuant to 42 U.S.C. § 1983
while she1 was an Ohio inmate incarcerated at the Chillicothe Correctional Institution. (ECF No.
3.) Following an initial screen of Plaintiff’s Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B)
and 1915A(b), the Court concluded that Plaintiff’s Complaint deserved further development and
permitted Plaintiff to proceed on her claims. (ECF No. 4.) Later in the litigation, Plaintiff filed an
Amended Complaint, the Court re-screened the Amended Complaint, and the Court dismissed
some claims, but permitted others to proceed. (ECF Nos. 71, 72, 83.)
1 Plaintiff, a transgender inmate, previously moved the Court to use female pronouns when
referring to her (ECF No. 24), and the Court granted Plaintiff’s request (ECF No. 26, PageID
305).
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Plaintiff actively participated in this action until January 2025, but then did not file
anything for several months, including a response to Defendants’ Cross Motion for Summary
Judgment filed in April 2025 (ECF No. 103). In July 2025, the Court ordered Plaintiff to show
cause as to why Defendants’ Cross Motion for Summary Judgment should not be considered
unopposed and why this action should not be dismissed for failure to prosecute. (ECF No. 104.)
Plaintiff responded to the Show Cause Order and requested a stay of the case until December 8,
2025, indicating that she would be “able to properly defend/prosecute this matter” at that time.
(ECF No. 105, PageID 1348.) The Court granted the stay through October 17, 2025, and directed
Plaintiff to file a Status Report on that date to update the Court on her circumstances and ability
to progress with this action. (ECF No. 106.) That Order was mailed to Plaintiff at her Chillicothe
Correctional Institution address. (See ECF No. 108.) Plaintiff did not file the Status Report, so
the Clerk’s office mailed the Order to Plaintiff’s previously provided Southern Ohio Correctional
Facility address, too. (See id.) That mailing was returned as undeliverable and the returned
envelope indicated that Plaintiff had been released. (ECF No. 107.)
The Court waited until Plaintiff’s previously requested date of December 8, 2025, passed,
and then ordered Plaintiff to update her address and re-file her Motion for Summary Judgment
and/or respond to Defendants’ Cross Motion for Summary Judgment by December 23, 2025, if
she intended to proceed with this case. (ECF No. 108.) The Court cautioned Plaintiff that failure
to do so would result in the recommendation that this case be dismissed for failure to prosecute.
(Id.) That Order was returned as undeliverable and Plaintiff has not responded to it. (ECF No.
109.)
In February 2026, the Magistrate Judge issued a Report and Recommendation,
recommending that this matter be dismissed without prejudice pursuant to Rule 41(b) for
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Plaintiff’s failure to prosecute. (ECF No. 110.) The Magistrate Judge explained that a plaintiff
has an affirmative duty to notify the Court of any change in address, and analyzed the four
factors courts consider when contemplating a dismissal under Rule 41(b):
(1) whether the party’s failure to cooperate is due to willfulness, bad faith, or fault;
(2) whether the adversary was prejudiced by the dilatory conduct of the party;
(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.
(Id. PageID 1367–69 (citing Stough v. Mayville Cmty. Schs., 138 F.3d 612, 615 (6th Cir.
1998)).) The Magistrate Judge concluded that all four factors weigh in favor of
dismissing this case without prejudice. (Id.) The Magistrate Judge also recommended
denying as moot Defendants’ Cross Motion for Summary Judgment. (Id. PageID 1369.)
Once a magistrate judge issues a report and recommendation, the relevant statute
provides:
Within fourteen days after being served with a copy, any party may serve and file
written objections to such proposed findings and recommendations as provided by
rules of court. A judge of the court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
objection is made.
28 U.S.C. § 636(b)(1). The failure to file written objections to a magistrate judge’s report and
recommendation waives a de novo determination by the district court of any issues addressed in
the report and recommendation. See United States v. Walters, 638 F.2d 947, 949–50 (6th Cir.
1981).
Plaintiff was advised of her right to object to the Report and Recommendation and of the
consequences of failing to do so. (ECF No. 110, PageID 1369–70.) Plaintiff did not object to the
Report and Recommendation.
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Accordingly, the Court ADOPTS and AFFIRMS (ECF No. 110) the Magistrate Judge’s
Report and Recommendation. This action is DISMISSED WITHOUT PREJUDICE pursuant
to Rule 41(b) for failure to prosecute. The Court DENIES AS MOOT (ECF No. 103)
Defendants’ Cross Motion for Summary Judgment.
The Clerk is DIRECTED to enter judgment and close this case. The Clerk is further
DIRECTED to mail a copy of this Order to Plaintiff Joshua Cook, A785788, at Southern Ohio
Correctional Facility, P.O. Box 45699, Lucasville, Ohio 45699.
IT IS SO ORDERED.
4/28/2026 	s/Edmund A. Sargus, Jr.
DATE 	EDMUND A. SARGUS, JR.
UNITED STATES DISTRICT JUDGE
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