Opinion
C/A 24-cv-3430-JDA-SVH
07-17-2024
Bryon Doll, Plaintiff, v. Donnie E. Stonebreaker, Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
Bryon Doll (“Plaintiff”), proceeding pro se, filed this complaint pursuant to 42 U.S.C. § i983 against Warden Donnie E. Stonebreaker (“Defendant”), alleging violations of his civil rights. Pursuant to 28 U.S.C. § 636(b)(i)(B) and Local Civ. Rule 73.02(B)(2) (D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge. For the following reasons, the undersigned recommends the district judge dismiss the complaint without prejudice.
Plaintiff is a state prisoner incarcerated at Evans Correctional Institution in Bennettsville, South Carolina. [ECF No. i at 2]. On June i0, 2024, Plaintiff filed a complaint alleging that beginning on January 28, 202i, and continuing through the date of the complaint, Defendant subjected him to cruel and unusual punishment in violation of the Eighth Amendment by commanding that his cell room window be covered with a metal plate that obstructed the sunlight and denying him access to an outdoor recreational field. Id. at 5. He claims he suffered physical, mental, and emotional pain as a result of Defendant's actions and seeks compensatory and punitive damages. Id. at 6, 7.
On June 18, 2024, the undersigned issued a proper form order explaining that Plaintiff had neither paid the filing fee nor filed a motion to proceed in forma pauperis. [ECF No. 6 at 1]. It permitted Plaintiff until July 9, 2024, to either: (1) pay the $350 filing fee and $55 administrative fee; or (2) to file an Application to Proceed in District Court Without Prepaying Fees or Costs (“Form AO 240”). Id. The Clerk mailed the proper form order and Form AO 240 to Plaintiff on June 20, 2024, [ECF No. 7], and it has not been returned to the court. Therefore, Plaintiff is presumed to have received the order. A review of the docket reveals that Plaintiff has neither paid the filing fee nor filed Form AO 240.
A prisoner may file a civil action in federal court without prepaying a filing fee if he “submits an affidavit that includes a statement of all assets [he] possesses” and indicates he “is unable to pay or give security” for the filing of the action. 28 U.S.C. § 1915(a)(1). In addition to filing this affidavit, the prisoner must “submit a certified copy of the trust account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the fling of the complaint or notice of appeal, obtained from the appropriate official of each prison at which the prisoner is or was confined.” 28 U.S.C. § 1915(a)(2).
It is well established that a district court has authority to dismiss a case for failure to prosecute. “The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). In addition to its inherent authority, this court may also sua sponte dismiss a case for lack of prosecution under Fed.R.Civ.P. 41(b). Id. at 630.
The Fourth Circuit has affirmed district court orders dismissing cases where prisoners failed to follow orders to pay filing fees. See Cuffee v. Dep't of Corr., 757 Fed. App'x 272, 272-73 (4th Cir. 2019) (affirming district court order dismissing case without prejudice where the plaintiff failed to comply with an order granting him leave to proceed in forma pauperis and directing him to pay an initial partial filing fee); Roudabush v. Mosley, 736 Fed. App'x 56 (4th Cir. 2018) (affirming district court's dismissal of case without prejudice where the plaintiff failed to comply with the court's order to file his action on a standard form and either pay the filing fee or move for leave to proceed in forma pauperis).
It appears based on Plaintiff's failure to comply with the court's June 18, 2024 order or otherwise respond that he does not intend to pursue the abovecaptioned matter. Therefore, the undersigned recommends this case be dismissed without prejudice for failure to prosecute pursuant to Fed.R.Civ.P. 41 and failure to comply with a court order.
The Clerk is directed to send this Report and Recommendation to Plaintiff at his address of record. If Plaintiff notifies the court within the time set for filing objections to this Report and Recommendation that he wishes to continue with this case and either pays the filing fee or files Form AO 240, the Clerk is directed to vacate this Report and Recommendation and return the file to the undersigned for further action. If, however, no objections are filed, the Clerk shall forward this Report and Recommendation to the district judge for disposition.
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, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
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).