Bailey v. Smith et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ANDRE BAILEY,
Plaintiff,
v.
SHELBIE SMITH, et al.,
Defendants.
Civil Action 2:26-cv-870
Judge Michael H. Watson
Magistrate Judge Chelsey M. Vascura
REPORT AND RECOMMENDATION
On July 22, 2026, this Court ordered Plaintiff to either file an application to proceed in
forma pauperis, or to pay the $405.00 filing fee, on or before August 21, 2026. (ECF No. 3.)
When Plaintiff failed to do so, the Court issued an Order on September 3, 2026, requiring
Plaintiff to show cause why his action should not be dismissed unless he either filed an
application to proceed in forma pauperis, or paid the $405.00 filing fee, within fourteen days.
(ECF No. 4.)
To date, Plaintiff has failed to comply with the Court’s Orders of July 22, 2026 or
September 3, 2026. 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
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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 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 tax-supported 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. 3–4.) Moreover, the Court cautioned Plaintiff that failure to comply may result in
dismissal of this action (see ECF No. 3). 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
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or contumacious conduct and justifie[d] dismissal”). 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.
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).
/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE
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