Miser v. Wilkinson

Full title: BRIAN MISER, Plaintiff, v. REGINALD WILKINSON, et al., Defendants

Court: United States District Court, S.D. Ohio, Western Division

Date published: Jan 19, 2006

No. 1:05-CV-00407 (S.D. Ohio Jan. 19, 2006)

Opinion

No. 1:05-CV-00407.

January 19, 2006

OPINION AND ORDER

S. SPIEGEL, Senior District Judge

This matter is before the Court on the Magistrate Judge's August 23, 2005 Report and Recommendation (doc. 12). Plaintiff filed no objection.

In his Report and Recommendation, the Magistrate Judge recommends that this action be dismissed with prejudice, as Plaintiff failed to respond to the Court's August 5, 2005 Order to Show Cause as to why this case should not be dismissed for lack of prosecution (doc. 10). The Magistrate Judge further notes that three Court Orders mailed to Plaintiff have returned undeliverable, and that Plaintiff has been released from prison (doc. 12). Accordingly, the Magistrate Judge indicates dismissal of this pro se civil rights action is appropriate. (Id. citing Fed.R.Civ.P. 41(b), Link v. Wabash R.R., 370 U.S. 626, 630=31 (1962), Jourdan v. Jabe, 951 F.2d 108, 109 (6^th Cir. 1991)).

Having reviewed this matter, the Court finds the Magistrate Judge's Report and Recommendation well-taken. By failing to keep the Court apprised of his current address, Plaintiff demonstrates a lack of prosecution of his action.See, e.g., Theede v. United States Department of Labor, 172 F.3d 1262, 1265 (10^th Cir. 1999) (Failure to object to a Magistrate Judge's Report and Recommendation due to delay resulting from party's failure to bring to the court's attention a change in address constitutes failure to object in a timely manner. Because the Recommendation was mailed to the last known address, it was properly served, and party waived right to appellate review). Moreover, Plaintiff's failure to reply to the Court's August 5, 2005 Order to Show Cause demonstrates a failure of Plaintiff to prosecute this action, justifying dismissal pursuant to Fed.R.Civ.P. 41(b).

Accordingly, the Court ADOPTS IN ENTIRETY the Magistrate Judge's Report and Recommendation (doc. 12), DISMISSES WITH PREJUDICE Petitioner's Complaint, for lack of prosecution, and CERTIFIES pursuant to 28 U.S.C. § 1915(a)(3) that any appeal of this Order would not be taken in good faith. McGore v. Wrigglesworth, 114 F. 3d 601 (6^th Cir. 1997).

SO ORDERED.