Opinion
C. A. 5:24-407-BHH-KDW
07-29-2024
Teru Davis, Plaintiff, v. Vitalcore Health Strategies; Jason Loy HSA; and Natalie Bell APRN, Defendants.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
Plaintiff, proceeding pro se and in forma pauperis, brought this action alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. On April 11, 2024, Defendants filed a Motion to Dismiss for Failure to State a Claim. ECF No. 22. Because 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 such motions and of the need for him to file an adequate response. ECF No. 24. Plaintiff was specifically advised that if he failed to respond adequately, the Defendants' Motion may be granted, thereby ending this case against Defendants. See id.
However, notwithstanding the specific warning and instructions set forth in the court's Roseboro Order, Plaintiff has failed to respond to the Motion to Dismiss. On May 2, 2024, the court received notification that the Roseboro Order was returned as undeliverable at the address provided by Plaintiff. ECF No. 27. The deadline to respond to Defendants' Motion was May 13, 2024.On May 20, 2024, the court issued an order directing Plaintiff to advise the court whether he wished to continue with the case and to file a response to the Motion by June 19, 2024. ECF No. 30. The court sent this order to the only address provided by Plaintiff to this court. On June 3, 2024, this order was returned to the court as undeliverable. ECF No. 34. Defendants' Motion has now been pending for approximately 3 months with no response. Plaintiff has also failed to keep the court apprised of his most updated address to be able to send Plaintiff court filings.
On April 30, 2024, the court received a letter from Defendants' attorney indicating that in attempting to serve their Motion to Dismiss on Plaintiff, it was returned to them as not deliverable and unable to forward. ECF No. 26. Defendants' attorney also indicated that upon searching the public records, it appears Plaintiff was released from the Charleston County Detention Center. Id.
As such, it appears to the court that Plaintiff does not oppose Defendants' Motion and wishes to abandon his action. See Fed.R.Civ.P. 41(b); Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978) (noting that a court deciding whether to dismiss a case under Fed.R.Civ.P. 41(b) must balance the policy of deciding cases on their merits against “sound judicial administration.” In so doing, the court must weigh: 1) plaintiff's responsibility for failure to prosecute, 2) prejudice to defendant from delay, 3) history of delay, and 4) effectiveness of lesser sanctions.); see also Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989) (noting and applying Davis factors in dismissing case under Fed.R.Civ.P. 41(b)); Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982) (same). Based upon the above, and taking into account the factors in Davis, Ballard, and Chandler, the undersigned recommends this action be dismissed with prejudice for failure to prosecute pursuant to Fed.R.Civ.P. 41(b).
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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, ClerkUnited States District Court Post Office Box 2317 Florence, South Carolina 29503
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).