Opinion
C/A No. 4:18-3422-BHH-TER
09-25-2019
DON SURVI CHISOLM, Plaintiff, v. RHYSHEMA DAVIS, MR. GORE, DEPUTY DIRECTORY STOLEY, NURSE DELEON, CHAPLAIN CUTTINO, Defendants
REPORT AND RECOMMENDATION
Plaintiff, appearing pro se, filed this action under 42 U.S.C. § 1983 on December 13, 2018, alleging a violation of his constitutional rights. On August 12, 2019, Defendants filed a motion filed a motion for summary judgment along with a memorandum and exhibits in support. (ECF No. 50). As the Plaintiff is proceeding pro se, the court issued an order on or about August 14, 2019, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. The Roseboro Order was returned to the Clerk of Court's office via United States Postal Service on September 3, 2019, marked "RTS and I/M Refused Legal Mail." (Doc. #56). The Plaintiff has not filed a response to the motion for summary judgment.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), DSC. Because this is a dispositive motion, the report and recommendation is entered for review by the district judge.
A report and recommendation entered by the court on August 28, 2019, was also returned to the Clerk of Court's office via United States Postal Service on September 13, 2019, marked " I/M Chisolm Refused this Legal Mail. Returned to Sender." (ECF No. 57). --------
RULE 41(B) DISMISSAL
A complaint may be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989), cert. denied, 493 U.S. 1084 (1990), and Chandler Leasing Corp. v. Lopez, 669 F.2d 919 (4th Cir. 1982). In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:
(1) the degree of plaintiff's responsibility in failing to respond;
(2) the amount of prejudice to the defendant;
(3) the history of the plaintiff in proceeding in a dilatory manner; and,
(4) the existence of less drastic sanctions other than dismissal. Davis v. Williams, 588 F.2d 69 (4th Cir. 1978).
In the present case, the Plaintiff is proceeding pro se so he is entirely responsible for his actions. It is solely through Plaintiff's neglect, and not that of an attorney, that no responses have been filed to the motion for summary judgment. Plaintiff has not responded to Defendants' motion for summary judgment or the court's orders requiring him to respond. The undersigned concludes the Plaintiff has abandoned this lawsuit. It appears there are no less drastic sanctions available.
CONCLUSION
Based on the above reasoning, it is RECOMMENDED that this action be dismissed for failure to prosecute pursuant to Fed. R. Civ. Proc. 41(b) with prejudice.
Respectfully submitted,
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge September 25, 2019
Florence, South Carolina
The parties' attention is directed to the important information on the attached notice.