Opinion
C. A. 9:21-02526-TLW-MHC
08-02-2022
Lawrence L. Crawford, also known as Jonah Gabriel Jahjah T. Tishbite, Plaintiff, v. Officer Ms. Atkinson, Officer Ms. Kee, Acting Head Nurse Over Lee C.I. at Night, The Company that employ the Nurses at Lee, Director Bryan Stirling, Warden Wise, Warden Tisdale, Captain Green, Warden Thomas, Senior Chaplain Mcknight, Muslim Chaplain Fauly, Officer McCrae, Defendants.
ORDER AND REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge.
This is a civil action filed by Plaintiff Lawrence L. Crawford, also known as Jonah Gabriel Jahjah T. Tishbite. Plaintiff is currently an inmate at the Lee Correctional Institution of the South Carolina Department of Corrections (SCDC). 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.
I. BACKGROUND/PROCEDURAL HISTORY
On August 10, 2021, Plaintiff filed an over 200-page Complaint in which he appears to allege constitutional claims pursuant to 42 U.S.C. § 1983 and a claim under the Americans with Disabilities Act. In the Court's Proper Form Order dated August 18, 2021, Plaintiff was given the opportunity to bring this case into proper form by providing (1) the $350.00 filing fee plus the additional $52.00 administrative fee (for a total of $402.00) if Plaintiff is not indigent, or a completed and signed Application to Proceed Without Prepayment of Fees and Affidavit (Form AO-240) if Plaintiff believes that he is indigent; (2) a completed and signed Financial Certificate (if Plaintiff completed a Form AO-240); (3) a completed summons form listing each Defendant and a full address where each Defendant can be served, and (4) a completed and signed Form USM-285 for each Defendant (if Plaintiff completed a Form AO-240). See ECF No. 6.
On September 10, 2021, Plaintiff's first motion for an extension of time to get his case into proper form was granted, and the deadline was extended until September 30, 2021. ECF No. 10. On October 5, 2021, Plaintiff's second motion for an extension of time was granted, and the deadline was extended until October 30, 2021. ECF No. 13. On November 1, 2021, Plaintiff's third motion for an extension of time was granted, and the proper form deadline was extended until November 30, 2021. ECF No. 19. On November 29, 2021, Plaintiff filed his fourth motion for an extension of time to get his case into proper form. He did not specify the amount of time he needed. ECF No. 21. In an order dated December 1, 2021, the time for Plaintiff to get his case into proper form was extended until December 17, 2021. ECF No. 22. Although Plaintiff has now provided some of the required documents, he has failed to provide all required documents to get his case into proper form.
On December 8, 2021, Plaintiff filed a motion to extend time to amend his Complaint. ECF No. 24. His motion was denied without prejudice as premature because the Complaint had not been served on Defendants and Plaintiff had not brought his case into proper form. A Text Order (ECF No. 25) entered December 13, 2021, noted the Federal Rules provide that, if a “pleading is one to which a responsive pleading is required,” the party may amend his pleading once as a matter of course within “21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed.R.Civ.P. 15(a)(1).
II. PLAINTIFF'S MOTIONS
A. MOTIONS TO EXTEND TIME
On December 13, 2021, Plaintiff filed a motion to renew his motion for an extension of time to submit an amended complaint. ECF No. 28. He requests time to “produce the required amended complaint demanded by the court.” Id. at 2. But, there is no order from the court in this case requiring that Plaintiff file an amended complaint. Additionally, and as noted previously, Plaintiff's motion is premature because the Complaint has not been served and Plaintiff has failed to bring his case into proper form. See Fed.R.Civ.P. 15(a)(1). Plaintiff's motion to extend time to file an amended complaint (ECF No. 28) is, therefore, DENIED without prejudice.
On December 20, 2021, Plaintiff filed a motion for an “extension for time to file 6[-]month financial statement” in which he again does not specify the amount of time he is requesting. ECF No. 31. However, Plaintiff filed a financial certificate on December 20, 2021. ECF No. 32-1. Thus, Plaintiff's motion (ECF No. 31) to extend time to file his Financial Certificate until December 20, 2021, is GRANTED.
B. MOTION TO AMEND COMPLAINT
On December 20, 2021, Plaintiff filed a proposed amended complaint of over 500 pages.ECF No. 30. Plaintiff also includes certain “motion” language, such that one could interpret Plaintiff's filing as a Motion to Amend his Complaint. In that case, the time for Plaintiff to amend his Complaint once as a matter of course has not expired. See Fed.R.Civ.P. 15(a)(1). An amended complaint replaces the original complaint. See Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001) (“As a general rule, an amended pleading ordinarily supersedes the original and renders it of no legal effect.”) (citation and internal quotation marks omitted). Thus, to the extent Plaintiff intends his filing as a motion to amend his Complaint, he already may do so once as a matter of course, such that his motion to amend (ECF No. 30) is GRANTED. See Columbia Cas. Co. v. McCabe Trotter & Beverly, PC, No. 2:20-CV-3680-DCN, 2021 WL 2337188, at *3 (D.S.C. June 8, 2021) (explaining that a party's right to amend its complaint once under the circumstances provided in Rule 15(a)(1) “is absolute,” and that a “timely filed amended pleading supersedes the original pleading”). The Clerk of Court is directed to file Plaintiff's proposed amended complaint (ECF No. 30) as the Amended Complaint in this action.
On the first page of the proposed amended complaint, Plaintiff has also written “Motion for Multi-District Panel Review and Transfer Pursuant to 28 U.S.C. §§ 1407, 1602-1612 et. seq. and Motion to Motion Therefore.” ECF No. 30 at 1. That motion is separate from the motion to amend and is addressed below.
As part of Plaintiff's motion, he references an “intent to appeal” this Court's Text Order, ECF No. 22. See ECF No. 29 at 3. However, the Text Order granted Plaintiff's Motion for Extension of Time, such that Plaintiff's intention is unclear.
On December 13, 2021, Plaintiff filed a motion to recuse and disqualify Magistrate Judge Cherry because of her “direct involvement in the matters that are presently before the 3rd Circuit under Case 21-1330, before the 4th[] Circuit under Cases 20-7073 and 21-6275 as well as via the petition seeking writ of certiorari that is before the United States Supreme Court.” ECF No. 29 at1-2. In his proposed amended complaint, filed after the motion to recuse, Plaintiff names all judges presiding within the South Carolina District Court as Defendants. However, he only appears to name them as Defendants in an attempt to transfer this and other cases to the State of New Jersey. See ECF No. 30 at 8-9.
Magistrate judges are authorized in certain cases to decide non-dispositive motions. See 28 U.S.C. § 636(b)(1)(A). Judges are authorized to decide motions for their own recusal. See In re Corrugated Container Antitrust Litig., 614 F.2d 958, 963 n. 9 (5th Cir. 1980) (noting that it is for the judge who is the object of the affidavit of bias to pass on its sufficiency) (citing 13 C. Wright, A. Miller, and E. Cooper, Federal Practice and Procedure § 3551 at 375); see also Muquit v. Judges Who Issue Order in Case 16-1953 , No. 8:16-cv-3194-RBH-JDA, 2016 WL 11200702, at *2 (D.S.C. Dec. 15, 2016) (magistrate judge declined to recuse where there was no basis upon which recusal or disqualification of the magistrate judge would be appropriate), report and recommendation adopted, 2017 WL 2821820 (D.S.C. June 30, 2017).
Under Title 28 Section 455, a judge must recuse where the judge's impartiality “might reasonably be questioned,” or where the judge has “a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” 28 U.S.C. § 455(a) and (b); see also United States v. Grinnell Corp., 384 U.S. 563, 583 (1966). The inquiry is an objective one, focusing on whether an outside observer with knowledge of all of the circumstances might have some reasonable basis for questioning the judge's impartiality. United States v. Morris, 988 F.2d 1335 (4th Cir. 1993) (citing Rice v. MacKenzie, 581 F.2d 1114, 1116 (4th Cir. 1978)). However, when no reasonable basis exists for questioning the judge's impartiality, it is improper for a judge to recuse; United States v. Glick, 946 F.2d 335, 336-37 (4th Cir. 1991); and the undersigned is not aware of any basis upon which recusal or disqualification of the undersigned would be appropriate at this time. See 28 U.S.C. § 455; Nakell v. Attorney Gen. of N.C. , 15 F.3d 319, 325 (4th Cir. 1994) (a judge is presumed to be qualified, and there is a substantial burden to show grounds for believing the contrary); Rochester v. Laubshire, No. 6:12-236-RBH, 2012 WL 2805717, at *2-3 (D.S.C. July 10, 2012) (finding that where a judge named as a defendant is assigned to the case, the requirement to disqualify is not absolute; such as where a litigant vexatiously sues a judge or makes frivolous allegations against the judge and is abusing the judicial system).
Plaintiff has not stated the authority under which he seeks recusal. He does not appear to be seeking recusal pursuant to 28 U.S.C. § 144 which provides, in pertinent part:
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.Here, Plaintiff has not provided the required affidavit, which “shall be accompanied by a certificate of counsel of record stating that it is made in good faith.” 28 U.S.C. § 144. Even if Plaintiff has submitted a sufficient affidavit, he has not established adequately that the undersigned has a “personal bias or prejudice either against [the plaintiff] or in favor of any adverse party.” See Sine v. Local No. 992 Int'l Bhd. of Teamsters, 882 F.2d 913, 914 (4th Cir. 1989). Notably, “‘[a]ssertions merely of a conclusionary nature are not enough, nor are opinions and rumors.'” United States v. Farkas, 669 Fed.Appx. 122, 123 (4th Cir. 2016) (per curiam) (quoting United States v. Haldeman, 559 F.2d 31, 34 (D.C. Cir. 1976)).
Additionally, Plaintiff's naming of the undersigned magistrate judge in the amended complaint, without more, is not a basis for disqualification from handling this lawsuit. See, e.g., Gabor v. Seligmann, 222 Fed.Appx. 577, 578 (9th Cir. 2007) (rejecting argument that the trial judge abused his discretion by failing to recuse himself when plaintiffs named him as a defendant in their amended complaint); Gaddy v. U.S. Dist. Ct., No. 8:19-CV-1700-JFA-JDA, 2019 WL 7285006 (D.S.C. July 9, 2019) (magistrate judge declined to recuse, even though the plaintiff named her as a defendant, where the plaintiff did not provide and the magistrate judge was not aware of “any basis upon which recusal or disqualification of the [magistrate judge] would be appropriate in [the] matter.”), report and recommendation adopted, No. 8:19-CV-1700-JFA-JDA, 2019 WL 4926368 (D.S.C. Oct. 7, 2019); Rochester v. Laubshire, 2012 WL 2805717, at *2-3. Plaintiff's motion to recuse Magistrate Judge Cherry (ECF No. 29) is, therefore, DENIED.
D. MOTIONS FOR PRELIMINARY INJUNCTIONS AND/OR PROTECTIVE ORDERS
On November 29, December 8, and December 13, 2021, Plaintiff filed motions seeking preliminary injunctive relief. See ECF Nos. 21, 24, and 28. In his motions, Plaintiff requests that the Court require SCDC to give him access to a law library for 37.2 hours per week, which he claims SCDC policy requires. ECF No. 21 at 2. Plaintiff asserts that he needs library access “to be able to be in compliance with the S.C. District Court's order to get the amended complaint before them[.]” ECF No. 24 at 4.
A preliminary injunction is “an extraordinary remedy involving the exercise of a very far-reaching power, which is to be applied only in the limited circumstances which clearly demand it.” Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 188 (4th Cir. 2013) (quoting Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 811 (4th Cir. 1991)) (internal quotation marks omitted). The decision whether to grant a preliminary injunction is committed to the equitable discretion of the district court. See Salazar v. Buono, 559 U.S. 700, 714 (2010); Christopher Phelps & Assocs., LLC v. Galloway, 492 F.3d 532, 543 (4th Cir. 2007).
As an initial matter, Plaintiff's requests for a preliminary injunction are premature because this action has not yet been served. “The court may issue a preliminary injunction only on notice to the adverse party.” Fed.R.Civ.P. 65(a)(1).
Moreover, Plaintiff's motions for a preliminary injunction should be denied because he has not made a clear showing for relief. A party seeking a preliminary injunction must establish all four of the following elements: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). A plaintiff must make a clear showing that he is likely to succeed on the merits of his claim. Winter, 555 U.S. at 22. Similarly, he must make a clear showing that he is likely to be irreparably harmed absent injunctive relief. Id. at 20-23. Only then may the court consider whether the balance of equities tips in the plaintiff's favor. Finally, the court must pay particular regard to the public consequences of employing the extraordinary relief of injunction. Id. at 24. Here, Plaintiff has not demonstrated that he has meet these four elements.
Plaintiff has not provided anything to show that he is likely to succeed on the merits. Additionally, to the extent Plaintiff argues that his alleged lack of 37.2 hours of library time violates SCDC policy, this claim is not cognizable under § 1983, as a violation of SCDC policies and/or procedures do not constitute a violation of Plaintiff s constitutional rights. See Keeler v. Pea, 782 F.Supp. 42, 44 (D.S.C. 1992); cf. Johnson v. S.C. Dep't of Corrs., No. 3:06-2062-CMC-JRM, 2007 WL 904826, at *12 (D.S.C. Mar. 21, 2007) (A plaintiff's allegation that defendants did not follow their own policies or procedures, standing alone, does not amount to a constitutional violation.) (citing Riccio v. County of Fairfax, Virginia, 907 F.2d 1459, 1469 (4th Cir. 1990)) (if state law grants more procedural rights than the Constitution requires, a state's failure to abide by that law is not a federal due process issue). Thus, Plaintiff's motions for a preliminary injunction and/or a protective order (ECF Nos. 21, 24, and 28) should be DENIED.
E. MOTIONS/PETITIONS TO REMOVE AND/OR TRANSFER STATE CASES TO FEDERAL COURT AND TO STAY STATE COURT ACTION
On January 28, 2022, Plaintiff filed a pleading titled “Petition to Remove.” See ECF No. 35. He appears to be attempting to remove South Carolina state case numbers 2021-CP-400-4705; 2006-CP-40-3567, 3568, and 3569; and 2013-CP-400-0084 to this Court to become part of this case. On April 25, 2022, Plaintiff filed a motion to transfer case number 2022-CP-10-161 to this Court. See ECF No. 43. On January 18, 2022, Plaintiff filed a motion in which he appears to request that South Carolina case number 2021-000354 be removed to this Court and that certain actions of the South Carolina Court of Appeals be stayed. ECF No. 34.
Plaintiff erroneously appears to think that he may reopen state and federal closed cases because the undersigned “opened the door” by stating in a previous Order that Plaintiff has filed numerous cases in this Court. In his motion for multi-district panel review (discussed further below), he asserts that:
since the Magistrate Judge opened the door by mentioning the Plaintiff's prior filings ? the pleading will be amended to attack the constitutionality of each of those cases due to the district court(s) involved making use of the PLRA and AEDPA of the Clinton bill whose constitutionality is being challenged...ECF No. 29 at 3 (errors in original). Plaintiff provides no authority to support his assertion that a mention of previous filings reopens prior cases and/or allows a prior case to be relitigated in this case.
Plaintiff appears to be attempting to remove cases he filed in the South Carolina courts into this action. To the extent that Plaintiff is attempting to remove a case in which he is a plaintiff, he may not do so, as a state court action may be removed to federal court only by a defendant. See 28 U.S.C. §§ 1441(a), 1443, and 1446(a). Further, some of the state court or other actions Plaintiff is attempting to remove and/or consolidate may involve claims of other inmates. To the extent Plaintiff is attempting to assert claims on behalf of another inmate, he may not do so. See Laird v. Tatum, 408 U.S. 1 (1972); see also Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464, 482 (1982); Flast v. Cohen, 392 U.S. 83, 99 (1968) (a district court, when determining whether a plaintiff has standing to sue, must focus on the status of the party who has filed the complaint, such that the merits of the case are irrelevant); Lake Carriers Ass'n v. MacMullan, 406 U.S. 498, 506 (1972); Hummer v. Dalton, 657 F.2d 621, 625626 (4th Cir. 1981) (a prisoner cannot act as a “knight-errant” for others); cf. Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (a pro se prisoner cannot be an advocate for others in a class action). It is, therefore, recommended that Plaintiff's petition/motions to remove and/or to transfer and/or to stay (ECF Nos. 34, 35, and 43) be DENIED.
This statute provides:
Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.28 U.S.C. § 1441(a)(emphasis added).
This statute provides that certain civil actions “commenced in a State court may be removed by the defendant...” 28 U.S.C. § 1443 (emphasis added).
This statute provides:
A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States....28 U.S.C. § 1446(a)(emphasis added).
F. MOTION FOR MULTI-DISTRICT PANEL REVIEW AND TRANSFER
On December 13, 2021, Plaintiff filed a motion requesting that his case be reviewed “by the multi-district panel of the State of New Jersey or whichever is applicable to seek that this case be transferred as a tag along case under multi-district litigation rules.” ECF No. 29. He provides no authority to support this motion. On December 20, 2021, Plaintiff filed a motion for multidistrict panel review and transfer pursuant to 28 U.S.C. §§ 1407, 1602-1612 et seq and “motion to motion therefor.” ECF No. 30 at 1. He asks that this case and various state cases be transferred to the State of New Jersey.” See id. at 57-58.
To the extent Plaintiff is requesting that this Court transfer his case to a federal multidistrict panel for review of civil cases, this Court cannot do so. Pursuant to 28 U.S.C. § 1407, proceedings for the transfer of an action under that section (Multidistrict Litigation) may be initiated by:
(i) the judicial panel on multidistrict litigation upon its own initiative, or
(ii) motion filed with the panel by a party in any action in which transfer for coordinated or consolidated pretrial proceedings under this section may be appropriate. A copy of such motion shall be filed in the district court in which the moving party's action is pending.28 U.S.C. § 1407(c). The United States Judicial Panel on Multidistrict Litigation (the MDL Panel) has the statutory authority to “(1) determine whether civil actions pending in different federal districts involve one or more common questions of fact such that the actions should be transferred to one federal district for coordinated or consolidated pretrial proceedings; and (2) select the judge or judges and court assigned to conduct such proceedings.” United States Judicial Panel on Multidistrict Litigation, About the Panel, https://www.jpml.uscourts.gov/about-panel (last visited May 11, 2022) (citing 28 U.S.C. § 1407). “Only the MDL panel can decide whether to create a multidistrict litigation.” Crawford v. Linares, No. 18CV13459NLHKMW, 2020 WL 2059956 (D.N.J. Apr. 29, 2020), reconsideration denied, 2020 WL 5905049 (D.N.J. Oct. 6, 2020).
Even were Plaintiff to file a motion with the Multidistrict Panel, the “mere pendency of a motion to transfer before the Multidistrict Panel does not affect or suspend the jurisdiction of the transferor court, or limit its ability to act on matters properly before it.” Gen. Elec. Co. v. Byrne, 611 F.2d 670, 673 (7th Cir. 1979); see Waters v. Bausch & Lomb, Inc., Case No. 06-80547-CIV-DIMITROULEAS, 2006 WL 8433439, at *2 (S.D. Fla. July 28, 2006); see also Fla. Health Scis. Ctr., Inc. v. Sackler, No. 19-62992-CIV, 2020 WL 1046601, at *1 (S.D. Fla. Jan. 24, 2020).
Additionally, Plaintiff has presented no facts to indicate that this case should be transferred to the State of New Jersey and/or to what he refers to as a State of New Jersey multidistrict panel. Section 1404 allows a court to exercise its discretion in ruling on a motion to transfer based on an individual, case-by-case basis. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988); see also Brock v. Entre Computer Ctrs., Inc., 933 F.2d 1253, 1257 (4th Cir. 1991). A district court may transfer any civil action to another district or division in the interest of justice and for the convenience of the parties and witnesses, provided that the action could have been originally filed in that district or division or all the parties consent to the transfer. 28 U.S.C. § 1404(a). Plaintiff has provided no facts to indicate that venue is proper in New Jersey. In general, a civil action may be brought in:
Plaintiff has provided no information about an alleged State of New Jersey Multidistrict panel and has provided no authority to indicate that a New Jersey state court could hear this federal court case or the South Carolina cases he is attempting to transfer.
(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.28 U.S.C. § 1391(b).
Here, it appears that all parties in the original Complaint are residents of South Carolina and that a substantial amount, if not all, of the alleged events occurred in South Carolina. Plaintiff has not alleged any facts indicating that venue is proper in New Jersey. Additionally, Plaintiff himself chose to bring the present action in this Court. Thus, it is recommended that Plaintiff's motions for Multi-Panel Review and/or Transfer to New Jersey (ECF Nos. 29 and 30) be DENIED.
III. FAILURE TO GET CASE INTO PROPER FORM
Finally, the undersigned recommends that this action be dismissed because Plaintiff has failed to bring this case into proper form. As noted above, Plaintiff was given the opportunity to bring his case into proper form by paying the filing fee or submitting a completed Form AO-240 and a Financial Certificate, submitting a summons form listing all Defendants and an address for each Defendant, and submitting a completed and signed Form USM-285 for each Defendant. In the Proper Form Order, Plaintiff was specifically warned that the failure to provide the necessary documents within the timetable set forth in the Order would subject the case to dismissal. See ECF No. 6. As noted above, the time to get this case into proper form has been extended four times (plus an additional extension to submit the Financial Certificate). Plaintiff has filed a Form AO-240 and a Financial Certificate. However, he has failed to provide all proper service documents.
Plaintiff submitted Forms USM-285 that impermissibly contain the names of more than one Defendant per form. He also impermissibly appears to be trying to issue service in cases other than the present case. Plaintiff has also not listed the names of all Defendants on the summons forms. He also improperly lists groups of people and/or entities instead of individually listing each person or entity and providing an address for service for each person and/or entity. See ECF No. 33.
The extended time to bring this case into proper form has now lapsed, and Plaintiff has failed to provide all the required items to bring his case into proper form. Thus, it is recommended that this action be dismissed in accordance with Fed.R.Civ.P. 41. See Link v. Wabash R.R. Co., 370 U.S. 626 (1962); Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989) (holding that district court's dismissal following an explicit and reasonable warning was not an abuse of discretion).
The Clerk shall mail this Report and Recommendation to Plaintiff at his last known address. If Plaintiff satisfies the requirements for proceeding with this case as is set forth in the proper form Order within the time set forth for filing objections to this Report and Recommendation, the Clerk is directed to partially vacate this Report and Recommendation (as to the recommendation that the case be dismissed) and return this file to the undersigned for further handling. However, if Plaintiff fails to do so, then at the end of the time for filing objections, the Clerk shall forward this Report and Recommendation to the District Judge for disposition. Ballard v. Carlson, 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); see also Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989) (holding that district court's dismissal following an explicit and reasonable warning was not an abuse of discretion).
IV. CONCLUSION
Based on the foregoing, it is ORDERED that Plaintiff's motion to extend ti amended complaint (ECF No. 28) is DENIED without prejudice; Plaintiff's mot Magistrate Judge Cherry (ECF No. 29) is DENIED; Plaintiff's motion to file complaint (ECF No. 30) is GRANTED; and Plaintiff's motion to extend the time to fi Certificate (31) until December 20, 2021, is GRANTED.
It is RECOMMENDED that Plaintiff's motions for a preliminary injun protective order (ECF Nos. 21, 24, and 28) be DENIED; Plaintiff's motion for Multi Review and/or transfer to New Jersey (ECF Nos. 29 and 30) be DENIED; a petition/motions to remove, transfer, and/or stay (ECF Nos. 34, 35, and 43) be DEN
Finally, it is RECOMMENDED that this case be DISMISSED, witho pursuant to Fed.R.Civ.P. 41(b).
Plaintiff's attention is directed to the important notice on the following 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
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. \0 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).