Opinion
Civil Action 9:22-cv-01017-RMG-MHC
04-06-2023
Rachel P. Brown, Plaintiff, v. A. Armstead and F.W. Oneal, Jr., Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Plaintiff, proceeding pro se and in forma pauperis, alleges her constitutional rights were violated by Defendants. ECF No. 1. Before the Court is Defendants' Motion to Dismiss. ECF No. 31. In their Motion, Defendants argue that Plaintiff's Complaint should be dismissed for two reasons: (1) failure to state a claim upon which relief can be granted, and (2) failure to prosecute. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2) (D.S.C.), this matter has been referred to the undersigned United States Magistrate Judge for pretrial management and for proposed findings of fact and recommendations. For the reasons that follow, the undersigned recommends that Defendant's Motion to Dismiss be granted.
BACKGROUND
On March 30, 2022, Plaintiff filed the Complaint, alleging that her constitutional rights were violated by Defendants, officers with the Beaufort County Sheriff's Office. ECF No. 1. She asserts that on April 10, 2020, she was “detained by officers illegally and forcefully[.]” Id. at 6. Plaintiff claims the officers stated she was interfering with their duties as to a traffic stop of another individual that Plaintiff witnessed. Id. She alleges that an officer forced her hands behind her back, even though she explained she could not do so because she had triple bypass open-heart surgery. Id. She also claims that officers slammed her onto the hood of the patrol car at the point of her heart surgery incision. Id. Plaintiff alleges she was hospitalized for almost two days after the alleged incident because of the injuries she suffered. Id. She claims that the officers violated her constitutional rights, and she requests monetary damages. Id. at 3, 6.
On April 21, 2022, the Court issued an Order directing Plaintiff that she needed to get her case into proper form and file answers to the Local Civil Rule 26.01 (D.S.C.) interrogatories. ECF No. 8. The Court also advised Plaintiff that she is responsible for informing the clerk of court in writing if her address changes. Id. On May 24, 2022, Plaintiff brought her case into proper form and filed her answers to the 26.01 interrogatories. ECF No. 11. This is the last filing made by Plaintiff in this case.
On June 7, 2022, the Court issued an Order authorizing service of process upon Defendants. ECF No. 13. Defendants filed an Answer in this case on July 18, 2022. ECF No. 18. The Court issued a Scheduling Order on July 19, 2022, setting a discovery deadline of November 16, 2022, and a dispositive motions deadline of January 17, 2023. ECF No. 22. The dispositive motions deadline was subsequently extended to March 31, 2023. ECF No. 32.
On November 7, 2022, Defendants filed a Motion to Compel, asserting that Plaintiff had not responded in any way to their written discovery requests. ECF No. 24. Plaintiff did not file any response in opposition to the Motion to Compel. The Court granted the unopposed Motion to Compel on November 30, 2022, and ordered Plaintiff to serve written responses by December 30, 2022. ECF No. 26 (“Discovery Order”).
On February 21, 2023, Defendants filed their Motion to Dismiss. In their Motion, Defendants assert that Plaintiff “has not responded to Defendants' motion [to compel] or discovery requests to date. Indeed, Plaintiff has taken no action whatsoever in this matter, to include any contact with the undersigned counsel or any filings with the Court of which the undersigned is aware, since . . . June 2022.” ECF No. 31 at 3. Defendants subsequently filed an affidavit from counsel stating that Plaintiff had been served with the Motion to Dismiss via certified mail return receipt requested, delivery restricted to addressee. ECF No. 36. Defendants also filed a copy of the return receipt executed by Plaintiff and dated February 24, 2023, which shows the same mailing address to which all Court orders have been mailed. Id. at 2.
Because Plaintiff is not represented by counsel, the Court issued, and mailed to Plaintiff, a Roseboro Order on February 23, 2023, to advise Plaintiff of the possible consequences if Plaintiff failed to respond adequately to Defendants' Motion. ECF Nos. 34 & 35. The Order specifically advised Plaintiff that if she failed to file a properly supported response by March 27, 2023, Defendants' Motion may be granted, thereby ending her case. Id. Notwithstanding the specific warning and instructions set forth in the Court's Roseboro Order, Plaintiff has failed to respond to the Motion to Dismiss, to comply with the Discovery Order, or to contact the Court in any way.
DISCUSSION
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. WabashR.R. Co., 370 U.S. 626, 629-32 (1962). If a party “fails to obey an order to provide or permit discovery,” the Court may issue an order “dismissing the action or proceeding in whole or in part.” Fed.R.Civ.P. 37(b)(2)(A)(v). Additionally, “[i]f the plaintiff fails to prosecute or to comply with [the Federal Rules] or a court order, a defendant may move to dismiss the action or any claim against it.” Fed R. Civ. P. 41(b). “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.” Link, 370 U.S. at 629-30.
In considering whether to impose such a dismissal, the Court should consider “(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) (per curiam) (quoting Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978); see Ballard v. Carlson, 882 F.2d 93, 96 (4th Cir. 1989) (upholding dismissal of pro se plaintiff's claims and noting that pro se litigants, like other litigants, “are subject to the time requirements and respect for court orders without which effective judicial administration would be impossible”).
The undersigned finds that all four factors under Lopez weigh in favor of dismissal. See Lopez, 669 F.2d at 920. First, because Plaintiff is proceeding pro se, she is personally and solely responsible for proceeding in a dilatory fashion and failing to comply with the Court's Discovery Order and its Roseboro Order.
Second, Defendant has expended time and resources answering the Complaint in this action, which Plaintiff now appears to abandon, and filing motions in this case. As to the third factor, Defendant indicates that its discovery requests were served in August 2022, see ECF No. 31 at 2-3, but Plaintiff has failed to respond to those requests in any way since that time, notwithstanding the Court's Discovery Order compelling her to do so. See ECF No. 26. Thus, the undersigned finds that Plaintiff has demonstrated a history of proceeding in a dilatory fashion.
Fourth, and finally, no sanctions other than dismissal likely would be effective given Plaintiff's in forma pauperis status and her lack of compliance or any sort of response to two Court orders requiring her to respond. Accordingly, because Plaintiff has failed to comply with the Court's Discovery Order and Roseboro Order or otherwise respond to the Motion to Dismiss, after being warned that such failure could result in dismissal, the undersigned recommends that the instant action be dismissed pursuant to Rule 41(b). See Davis, 588 F.2d at 70; see also Ballard, 882 F.2d at 95 (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).
RECOMMENDATION
It is RECOMMENDED that Defendants' Motion to Dismiss (ECF No. 31) be GRANTED, and this action be DISMISSED, pursuant to Rule 41(b), for lack of prosecution.
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).