Opinion
C/A No. 8:19-cv-00509-TMC-JDA
09-25-2019
William Curtis, Plaintiff, v. Marvin Nix, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Plaintiff brought this action seeking relief pursuant to 42 U.S.C. § 1983. [Doc. 1.] On February 28, 2019, the Court issued an Order directing Plaintiff to bring the case into proper form and advising Plaintiff of his duty to keep the Court informed of his current address. [Doc. 5.] On April 5, 2019, the Court authorized service of process on Defendant. [Doc. 18.] On July 12, 2019, Defendant filed a motion for summary judgment. [Doc. 46.] By Order of this Court filed on July 15, 2019, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Plaintiff was advised of the summary judgment/dismissal procedure and the possible consequences if he failed to respond adequately to the motion. [Doc. 48.] Despite this explanation regarding the consequences for failing to respond, Plaintiff failed to respond to the motion for summary judgmennt.
As Plaintiff is proceeding pro se, the Court filed an Order on August 29, 2019, giving Plaintiff through September 18, 2019, to respond to the motion for summary judgment. [Doc. 58.] Plaintiff was advised that if he failed to respond, this action would be dismissed for failure to prosecute. [Id.] On September 12, 2019, the Court's August 29, 2019, Order was returned to the Court as undeliverable, marked "Return to Sender/Not Deliverable as Addressed/Unable to Forward." [Doc. 61.] As of the date of this Order, Plaintiff has failed to advise the Court of any change in his address, nor has he responded to the summary judgment motion.
Based on the foregoing, it appears Plaintiff no longer wishes to pursue this action. "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.R. Co., 370 U.S. 626 (1962); White v. Raymark Indus., Inc., 783 F.2d 1175 (4th Cir. 1986); Zaczek v. Fauquier Cty., Va., 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;588 F.2d 69, 70 (4th Cir. 1978) (citing McCargo v. Hedrick, 545 F.2d 393, 396 (4th Cir. 1976)). 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.
(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.
As Plaintiff is proceeding pro se, he is personally responsible for his failure to advise the Court of his current address. The Court specifically warned Plaintiff the case would be subject to dismissal if he failed to update his address and thereby failed to meet a Court deadline. [Doc. 5 at 3.] Plaintiff is also personally responsible for his failure to file a response to the motion for summary judgment. Plaintiff has had over two months to respond to the motion. Plaintiff's initial response was due by August 15, 2019; despite being advised of the possible consequences if he failed to adequately respond, Plaintiff elected not to respond to the motion. The Court extended Plaintiff's deadline to respond until September 18, 2019, and attempted to warn Plaintiff that the case would be dismissed pursuant to Rule 41(b) if Plaintiff failed to file a response. However, because Plaintiff elected not to update his address, he did not receive the Court's final warning. Nevertheless, Plaintiff has not responded to the motion. Because Plaintiff has already ignored Court Orders and deadlines, sanctions less drastic than dismissal would not be effective.
The Roseboro Order was not returned to the Court.
Wherefore, based upon the foregoing, the Court recommends that the case be DISMISSED pursuant to Federal Rule of Civil Procedure 41(b).
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge September 25, 2019
Greenville, South Carolina