Opinion
C/A 9:23-cv-03748-CMC-MHC
05-22-2024
Okera Abijah Bomani, formerly known as Henry Leonard McCray, Plaintiff, v. Marcus Rhodes and Nurse Jennifer, Defendants.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY APRIL 24, 2024 UNITED STATES MAGISTRATE JUDGE
Plaintiff, proceeding pro se and in forma pauperis, brought this action seeking relief pursuant to Title 42, United States Code, Section 1983. Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.
By Order dated November 15, 2023 (“Address Order”), Plaintiff was specifically “ordered to always keep the Clerk of Court advised in writing . . . if [his] address changes for any reason.” ECF No. 25 at 2 (emphasis in original). The Address Order also warned Plaintiff of the following: “If as a result of your failure to comply with this Order, you fail to meet a deadline set by this court, your case may be dismissed for violating this Order.” Id. (emphasis in original). The Address Order was mailed to Plaintiff on November 15, 2023, see ECF No. 28. Plaintiff subsequently filed a motion for preliminary injunction on November 30, 2023, and various letters to the Court in December 2023. See ECF Nos. 29-32. However, Plaintiff has not filed documents with the Court since December 2023. See generally docket.
Prior Court orders in this case likewise ordered Plaintiff to inform the Clerk of Court in writing if his address changes and warned him that his failure to do so may result in his case being dismissed for violation of that order. See ECF No. 5 at 3 (Proper Form Order dated August 3, 2023, stating, in part: “You are ordered to always keep the Clerk of Court advised in writing . . . if your address changes for any reason, so as to assure that orders or other matters that specify deadlines for you to meet will be received by you. If as a result of your failure to comply with this Order, you fail to meet a deadline set by this Court, your case may be dismissed for violating this Order.”); ECF No. 12 at 3 (Second Proper Form Order dated August 29, 2023, containing same address order and warning of dismissal); ECF No. 18 at 2 (Third Proper Form Order dated September 26, 2023, containing same address order and warning of dismissal).
On March 18, 2024, Defendant Nurse Jennifer filed a Motion to Dismiss for Failure to State a Claim, seeking dismissal of this case. ECF No. 34. Because Plaintiff is proceeding pro se, the Court issued an order on March 19, 2024, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the dismissal procedures and the possible consequences if he failed to adequately respond to Defendant's Motion. ECF No. 35. Plaintiff was specifically advised that if he failed to respond adequately, Defendant's Motion may be granted, thereby ending his case. Id. The deadline for Plaintiff to file a response to the Motion was April 19, 2024. Id.
The Court's docket indicates that the clerk mailed the Roseboro Order to the address on file for Plaintiff, which was the J. Reuben Long Detention Center (the “Detention Center”) in Conway, South Carolina. ECF No. 36. The Roseboro Order was returned as undeliverable on April 19, 2024, with a note indicating that Plaintiff had been released from the detention center. ECF No. 40. In a memorandum filed by Defendant Nurse Jennifer on April 5, 2024, Defendant stated that Plaintiff was released from the Detention Center on January 18, 2024. ECF No. 39 at 1.
Federal courts have the inherent power to dismiss an action, either sua sponte or on a party's motion, for failure to prosecute. See Link v. Wabash R.R. Co., 370 U.S. 626, 629-32 (1962) (explaining that the “power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts.”); see also Fed.R.Civ.P. 41(b). In considering whether to dismiss a case for failure to prosecute, a district court should consider the following four criteria: “(1) the degree of personal responsibility of the plaintiff, (2) the amount of prejudice caused the defendant, (3) the existence of ‘a drawn out history of deliberately proceeding in a dilatory fashion,' and (4) the existence of a sanction less drastic than dismissal.” Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982) (quoting Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978)).
Notwithstanding the specific warning and instructions as set forth in the Court's Address Order, ECF No. 25, as well as the Court's three Proper Form Orders, see ECF Nos. 5, 12 & 18 and footnote 1, supra, Plaintiff failed to update the Court with his new address. As a result, the Court does not have any means of contacting Plaintiff concerning his case. Further, Plaintiff has failed to respond to the Motion to Dismiss or to otherwise contact the Court in any way since December 2023.
Based on the foregoing, and the previous instructions and specific warnings given to Plaintiff in the Address Order, the three Proper Form Orders, and the Roseboro Order, the undersigned finds that Plaintiff meets the criteria for dismissal under Lopez. Accordingly, it is RECOMMENDED that this action be DISMISSED for lack of prosecution. See Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978); Fed.R.Civ.P. 41(b); see also Coker v. Int'l Paper Co., No. 08-1865, 2010 WL 1072643, at *2 (D.S.C. Mar. 18, 2010) (noting that a plaintiff can abandon claims by failing to address them in response to a dispositive motion); Jones v. Family Health Ctr., Inc., 323 F.Supp.2d 681, 690 (D.S.C. 2003) (noting that a claim not addressed in opposition memorandum had been abandoned).
Plaintiff is personally responsible for proceeding in a dilatory fashion; Defendants are suffering prejudice because of having to expend time and resources on a case in which Plaintiff is unresponsive; no sanctions other than dismissal appear to exist as the Plaintiff is indigent (and therefore not subject to monetary sanctions); and Plaintiff has otherwise failed to respond to Court filings and to maintain a current mailing address, despite Court orders requiring him to do so. Lopez, 669 F.2d at 920.
The Clerk shall mail this Report and Recommendation to Plaintiff at his last known address. If the Plaintiff provides a current address and files a response to the Motion to Dismiss within the time set forth for filing objections to this Report and Recommendation, the Clerk is directed to vacate this Report and Recommendation and return this file to the undersigned for further handling.
If, however, no updated address or response to the Motion is filed, the Clerk shall forward this Report and Recommendation to the District Judge for disposition. Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (Magistrate Judge's prior explicit warning that a recommendation of dismissal would result from plaintiff failing to obey his order was proper grounds for the district court to dismiss suit when plaintiff did not comply despite warning).
After a litigant has received one explicit warning as to the consequences of failing to timely comply with an order of a Magistrate Judge, and has failed to respond to that order, the district court may, under Fed.R.Civ.P. 41(b), dismiss the complaint based upon the litigant's failure to comply with that court order. See Simpson v. Welch, 900 F.2d 33, 35-36 (4th Cir. 1990); Ballard, 882 F.2d at 95-96 (holding that district court's dismissal following an explicit and reasonable warning was not an abuse of discretion).
It is so RECOMMENDED.
The parties are referred to the Notice Page attached hereto.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).