Opinion
8:24-cv-00123-BHH-BM
07-25-2024
Michael J. Coffy, Plaintiff, v. Mr. Isaih Williams, Aramark Food Services Supervisor; Tom Crocker, Aramark Food Services Director, Defendants.
REPORT AND RECOMMENDATION
Bristow Marchant United States Magistrate Judge
This action, filed by a pro se litigant under 42 U.S.C. § 1983, is before the undersigned United States Magistrate Judge to review all pretrial matters and to submit findings and recommendations to the District Court pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2), D.S.C. For the reasons below, the undersigned recommends that this case be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute.
BACKGROUND
Plaintiff commenced this action by filing a Complaint on the standard form, which was entered on January 8, 2024. ECF No. 1. The Court conducted an initial review and ordered Plaintiff to bring the case into proper form by Orders dated January 9, 2024, and February 9, 2024. ECF Nos. 8; 18. Thereafter, Plaintiff filed an Amended Complaint, naming three Defendants: Aramark Correctional Services, LLC (“Aramark”); Tom Crocker, Director of Aramark Correctional Services (“Crocker”); and Isaih Williams, Supervisor of Aramark Correctional Services (“Williams”). ECF No. 20.
By Order dated March 7, 2024, the Honorable Thomas E. Rogers, III, issued an Order authorizing service of process on Defendants Crocker and Williams. ECF No. 24. That same day, a Summons was issued and the Summons, Amended Complaint, and Forms USM-285 were sent to the United States Marshal (“the Marshal”) for service of process. ECF Nos. 27; 28 (court only document). However, service was not authorized for Aramark and Judge Rogers issued a Report, recommending that Defendant Aramark be dismissed without issuance and service of process. ECF No. 25. Plaintiff did not file objections, and the Honorable Bruce Howe Hendricks adopted that Report and Recommendation on March 29, 2024, dismissing Aramark with prejudice. ECF No. 30.
On April 10, 2024, this case was reassigned to the undersigned United States Magistrate Judge. ECF No. 33.
On March 26, 2024, the Marshal filed a summons returned unexecuted as to Defendant Crocker. ECF No. 29. On May 22, 2024, counsel for Defendant Williams filed a notice of appearance, ECF No. 36, and requested an extension of time to file an Answer, which the Court granted, ECF Nos. 37; 39. Additionally, the Court entered an Order directing counsel for Defendant Williams to advise the Court whether he was authorized to accept service on behalf of Defendant Crocker, and, if not so authorized, to provide to the Court, under seal, an address at which he could be served. ECF No. 40. On May 30, 2024, counsel of record filed a reply to the Court's Order, explaining he was not authorized to accept service for Defendant Crocker and that his contact person with Aramark “has no knowledge of an Aramark employee named Tom Crocker who has worked for Aramark for the past two and a half years.” Id. As such, by Order dated June 3, 2024, Plaintiff was instructed to provide an updated address and additional identifying information for Defendant Crocker. ECF No. 44. The Court explained that, based on the filings by the Marshal and counsel for Defendant Williams, “[i]t appears that the person identified in Plaintiff's Amended Complaint as Tom Crocker is not an employee of Aramark.” Id. at 2. Further, Plaintiff was warned that if he did not respond to the Order and/or did not provide a new summons and Form USM-285 for Defendant Crocker with a new updated address, the Court may recommend that Defendant Crocker be dismissed. Id. Plaintiff did not respond to the Court's Order and the deadline to respond (June 24, 2024, plus three days for mail time) has expired.
It appears that the Marshal attempted to serve Defendant Crocker at the address provided by Plaintiff but was unable to accomplished service because the individuals at the address were “unable to accept service for Tom Crocker. Name not found in any of their system, for any of their corrections locations. Attempted a few different spellings too.” ECF No. 39.
On June 13, 2024, Defendant Williams filed a motion to dismiss. ECF No. 46. As Plaintiff is proceeding pro se, the Court entered an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising him of the importance of the motion and of the need for him to file an adequate response by July 15, 2024. ECF No. 47. Plaintiff was specifically advised that if he failed to respond adequately, Defendant's motion may be granted, thereby ending this case. Id. However, notwithstanding the specific warning and instructions set forth in the Court's Roseboro Order, Plaintiff has failed to respond to the motion.
ANALYSIS
Based on the foregoing, it appears to the Court that Plaintiff has abandoned this matter, and this case is therefore subject to dismissal for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Indeed, Plaintiff has not filed anything in this case since February 23, 2024, when he filed his Amended Complaint. ECF No. 20. Plaintiff did not file objections or any kind of response to the Report and Recommendation entered on March 7, 2024. The Court has Ordered Plaintiff multiple times to file responses to the Court's Orders and to Defendant William's motion. ECF Nos. 44; 47. However, Plaintiff has not filed any responses. Defendant Crocker has not been served or properly identified, despite the Court giving Plaintiff multiple opportunities to provide the Court with information sufficient to serve this Defendant.
“The Federal Rules of Civil Procedure recognize that courts must have the authority to control litigation before them, and this authority includes the power to order dismissal of an action for failure to comply with court orders.” Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (citing Fed.R.Civ.P. 41(b)). “Federal courts possess an inherent authority to dismiss cases with prejudice sua sponte.” Gantt v. Md. Div. of Corr., 894 F.Supp. 226, 229 (D. Md. 1995) (citing Link v. Wabash R. Co., 370 U.S. 626 (1962); White v. Raymark Indus., 783 F.2d 1175 (4th Cir. 1986); Zaczek v. Fauquier Cnty., 764 F.Supp. 1071, 1074 (E.D. Va.1991)).
The Fourth Circuit, in Davis v. Williams, recognizing that dismissal with prejudice is a harsh sanction that should not be invoked lightly, set forth four factors for determining whether Rule 41(b) dismissal is appropriate:
(1) the degree of personal responsibility on the part of the plaintiff;
(2) the amount of prejudice to the defendant caused by the delay;
(3) the presence or absence of a drawn out history of deliberately proceeding in a dilatory fashion; and
(4) the effectiveness of sanctions less drastic than dismissal.588 F.2d 69, 70 (4th Cir. 1978). Subsequently, however, the Fourth Circuit noted that “the four factors . . . are not a rigid four-pronged test,” and whether to dismiss depends on the particular circumstances of the case. Ballard, 882 F.2d at 95. For example, in Ballard, the court reasoned that “the Magistrate's explicit warning that a recommendation of dismissal would result from failure to obey his order is a critical fact that distinguishes this case from those cited by appellant. . . . In view of the warning, the district court had little alternative to dismissal. Any other course would have placed the credibility of the court in doubt and invited abuse.” Id. at 95-96.
At this point, Plaintiff has twice allowed the deadlines set forth by the Court to pass without filing any response. Because Plaintiff is proceeding pro se, he is personally responsible for this failure. In this Court's Roseboro Order dated June 14, 2024, the Court clearly stated that if Plaintiff failed to file his response, “the court may grant the defendant's motion, which may end your case.” ECF No. 47 at 1 (emphasis in original). However, Plaintiff did not file a response to that Order. As such, it appears to the Court that he wishes to abandon his case. Because Plaintiff has already ignored multiple Court Orders and deadlines and has failed to assist the Court in accomplishing service on one of the named Defendants, the Court concludes that sanctions less drastic than dismissal would not be effective.
RECOMMENDATION
Based on the foregoing, it is recommended that this case be dismissed for lack of prosecution under Rule 41(b). If Plaintiff advises the Court that he wishes to continue with this case and files a response to Defendant's motion to dismiss by August 8, 2024, then in that event the Clerk is directed to return this case to the undersigned for further review. If, however, Plaintiff fails to respond, this action should be dismissed with prejudice for failure to prosecute. See Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978); Fed.R.Civ.P. 41(b).
IT IS SO RECOMMENDED.
Plaintiff's attention is directed to the important notice on the next page.
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 250 East North Street, Suite 2300 Greenville, South Carolina 29601
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).