Cassidy v. Scioto County Jail

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

LEO CASSIDY,

Plaintiff,

Case No. 1:21-cv-773

v. JUDGE DOUGLAS R. COLE

Magistrate Judge Litkovitz

SCIOTO COUNTY JAIL, et al.,

Defendants.

ORDER

This cause comes before the Court on the Magistrate Judge’s February 23,

2022, Report and Recommendation (“R&R,” Doc. 14), which recommends dismissing

Plaintiff Leo Cassidy’s Complaint (Doc. 3) for lack of prosecution. For the reasons

stated more fully below, the Court ADOPTS the R&R (Doc. 14), and accordingly

DISMISSES Cassidy’s Complaint (Doc. 3) WITH PREJUDICE. As a result, the

Court DENIES all outstanding motions in this matter (Docs. 2, 6, 7) AS MOOT.

Plaintiff Leo Cassidy originally filed his Complaint against “Scioto County

Jail/Detention Center/Sherriff” in the Scioto County Court of Common Pleas on

November 8, 2021. (See Compl., Doc. 3, #28). Defendants Scioto County Jail and

Scioto County Sherriff David Thoroughman timely removed the action to this Court,

asserting the existence of federal question jurisdiction.1 (Notice of Removal, Doc. 1,

#2 (citing 28 U.S.C. § 1331)). In particular, Defendants argued in their Notice of

1 Though the Electronic Case Filing system reflects only one defendant in this case (“Scioto

County Jail/Detention Center/Sherriff”), Scioto County Jail and Scioto County Sheriff David

Thoroughman identify themselves separately in the Notice of Removal, and thus the Court

refers to “Defendants” throughout this Order.

Removal that the claims in Cassidy’s Complaint arise under 42 U.S.C. § 1983 and

“should be construed” as alleging unlawful conditions of confinement in violation of

the Eighth and Fourteenth Amendments. (Id. at #1–2).

On the same day they removed the action, Defendants moved to dismiss

Cassidy’s Complaint for failure to state a claim. (Mot. to Dismiss, Doc. 2). Among

other things, Defendants argued that (1) the Jail facility itself was not a proper

defendant; (2) even had Cassidy named Scioto County itself as a defendant, the

Complaint would fail to state a claim for Monell liability against the County; and

(3) the Complaint would likewise fail to state a plausible claim against Sheriff

Thoroughman. (See id. at #17). About two weeks later, Defendants moved to

consolidate this case with case number 1:21-cv-795, another action Cassidy had filed

concerning the conditions of his confinement. (Mot. to Consolidate, Doc. 6, #36–37).

Though the cases were never formally consolidated, the assigned Judges agreed that

this case and case number 1:21-cv-795 were related. (See Related Case Mem. Order,

Doc. 9).

About three weeks after Defendants moved to dismiss Cassidy’s Complaint,

Cassidy moved to amend it. (Mot. to Amend, Doc. 7). In that Motion, Cassidy conceded

an “error” in the Complaint, and sought to remedy that error by substituting as

defendants “Scioto County, Ohio, Scioto County Board of Commissioners, Scioto

County Sherriff David Thoroughman, [and] Scioto County Corrections Center Jail

Administrator.” (Id. at #39). Cassidy did not, however, offer any formal response to

Defendants’ Motion to Dismiss. Moreover, the notice mailed to Cassidy to apprise him

of the related case memorandum order was returned as undeliverable on January 26,

2022, labeled “Not In Jail.” (See Doc. 11).

On January 31, 2022, the Magistrate Judge ordered Cassidy to, in writing and

within fifteen days, show cause why his Complaint should not be dismissed for lack

of prosecution. (Doc. 12). Nearly a month later, after the notice mailed to Cassidy

regarding the Show Cause Order was returned undeliverable, (see Doc. 13), the

Magistrate Judge issued the instant R&R. (Doc. 14). That R&R recommends

dismissing Cassidy’s Complaint with prejudice primarily because “[t]o date, …

plaintiff has not filed a response to the Order to Show Cause.” (Id. at #69).

The R&R advised Cassidy that failing to object within 14 days could result in

forfeiture of rights on appeal, which includes the right to District Court review. (Id.

at #71). See also Thomas v. Arn, 474 U.S. 140, 152 (1985) (“There is no indication that

Congress, in enacting § 636(b)(1)(C), intended to require a district judge to review a

magistrate’s report to which no objections are filed.”); Berkshire v. Dahl, 928 F.3d

520, 530 (6th Cir. 2019) (noting “fail[ure] to file an objection to the magistrate judge’s

R&R … is forfeiture”); 28 U.S.C. § 636(b)(1)(C). Accordingly, the deadline for objection

was March 9, 2022. That date has long since passed, and no party objected, nor did

they seek additional time to do so.

Nonetheless, although no party objected, the advisory committee notes to

Federal Rule of Civil Procedure 72(b) suggest that the Court still must “satisfy itself

that there is no clear error on the face of the record in order to accept the

recommendation.” See, e.g., Mavrakis v. Warden, No. 5:17-cv-2398, 2018 WL 4104187,

at *3 (N.D. Ohio Aug. 28, 2018) (reviewing for clear error absent an objection to a

Magistrate Judge’s R&R); Jackson v. Drug Enf’t Admin., No. 1:21-cv-402, 2022 WL

60312, at *1 (S.D. Ohio Jan. 6, 2022) (same); Wilkins v. Mahlman, No. 1:21-cv-312,

2022 WL 44689, at *1 (S.D. Ohio Jan. 5, 2022) (same).

The Court has reviewed the R&R (Doc. 14) and finds “no clear error on [its]

face.” See Fed. R. Civ. P. 72(b) (advisory committee notes). An action is subject to

dismissal for lack of prosecution where a pro se litigant fails to comply with the

Court’s orders or engages in a clear pattern of delay. Fed. R. Civ. P. 41(b); see also

Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991); Link v. Wabash R.R., 370 U.S.

626, 630–31 (1962) (district courts have the inherent power “to manage their own

affairs so as to achieve the orderly and expeditious disposition of cases,” including by

sua sponte dismissal). Here, Cassidy has arguably both failed to comply with the

Court’s orders and engaged in a clear pattern of delay. That is, not only did Cassidy

fail to respond to the Magistrate Judge’s order to show cause why his action should

not be dismissed, but he also failed to respond to Defendants’ Motion to Dismiss, and

there is no evidence that he remains interested in litigating his claims.

Cassidy’s unrepresented status does not warrant any “special consideration.”

See Jourdan, 951 F.2d at 110. True, it appears Cassidy may be unaware of the

developments in his case, given that the Court’s mailed notices have been returned

as undeliverable. (See Docs. 11, 13). But this potential lack of awareness is no excuse;

indeed, it is incumbent upon any litigant, including a pro se litigant, to keep the Court

informed of his or her current address. See Barber v. Runyon, No. 93–6318, 1994 WL

163765, at *1 (6th Cir. May 2, 1994). And the Supreme Court has “never suggested

that procedural rules in ordinary civil litigation should be interpreted so as to excuse

mistakes by those who proceed without counsel.” McNeil v. United States, 508 U.S.

106, 113 (1993); see also Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996)

(“Where … a pro se litigant fails to comply with an easily understood court-imposed

deadline, there is no basis for treating that party more generously than a represented

litigant.”).

Although the Court prefers to adjudicate cases on their merits, Cassidy’s

failure to respond to the Magistrate Judge’s Show Cause Order (Doc. 12) or to

Defendants’ Motion to Dismiss (Doc. 2) amounts to a failure to obey a Court order and

a clear pattern of delay, and therefore warrants dismissal of this case pursuant to

Fed. R. Civ. P. 41(b) for lack of prosecution. See Link, 370 U.S. at 630–31; Jourdan,

951 F.2d at 110.

CONCLUSION

For the foregoing reasons, the Court ADOPTS the R&R (Doc. 14), and

accordingly DISMISSES Cassidy’s Complaint (Doc. 3) WITH PREJUDICE. As a

result, the Court DENIES all outstanding motions in this matter (Docs. 2, 6, 7) AS

MOOT. The Court further CERTIFIES, pursuant to 28 U.S.C. § 1915(a)(3), that an

appeal of this Order would not be taken in good faith, and thus Cassidy is not entitled

to in forma pauperis status on appeal. The Court DIRECTS the Clerk to enter

judgment accordingly and to TERMINATE this case on the Court’s docket.

SO ORDERED.

July 13, 2022

DATE DOUGLAS R. COLE \.

UNITED STATES DISTRICT JUDGE