Opinion
C/A 3:22-694-MGL-PJG
12-15-2022
Henry Clarence Epp, IV, Plaintiff, v. Prisma Health, Defendant.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE
The plaintiff, who was initially represented by counsel, brought this civil rights action seeking relief pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq.; and the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). On April 25, 2022, the court entered a scheduling order in this matter establishing, inter alia, a discovery deadline of November 14, 2022. (ECF No. 11.)
On August 23, 2022, the defendant filed a motion to compel. (ECF No. 19.) Several days later, on August 26, 2022, counsel for Plaintiff filed a motion to withdraw as Plaintiff's attorney. (ECF No. 20.) In her motion, counsel indicated that “[i]rreconcilable differences have arisen between Plaintiff and her counsel precluding further representation,” and provided Plaintiff's last known address and telephone number. (Id.) Counsel served her motion on Plaintiff via U.S. Mail and electronic mail, and Plaintiff did not file any objection to the motion with the court. (ECF No. 20.) Accordingly, on September 23, 2022, the court granted by docket text order counsel's motion to be relieved without opposition filed. (ECF No. 24.) The court issued a second order the same day in which it advised Plaintiff that he was now proceeding pro se, informed Plaintiff of the filing and other requirements for proceeding with his case and for his responsibility to always keep the court advised in writing of any change in his address, and allowed Plaintiff sixty days to obtain new counsel. (ECF No. 27.)
The September 23, 2022 order was mailed to Plaintiff at his last known address. On October 28, 2022, the order was returned by the United States Postal Service as undeliverable.The “court only” docket reflects that the Clerk contacted Plaintiff's prior counsel and confirmed Plaintiff's last known address. As of the date of this order, no response from the Plaintiff has been received by the court.
Out of an abundance of caution, the Clerk of Court re-mailed the court's order to Plaintiff on November 7, 2022. As of the date of this Recommendation, the order has not been returned.
By failing to keep the court (and, apparently, his former attorney) apprised of his current address, Plaintiff has failed to prosecute his case.
RECOMMENDATION
Accordingly, it is recommended that this action be dismissed with prejudice for lack of prosecution. See Davis, 588 F.2d at 70; Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (stating that magistrate judge's prior explicit warning that a recommendation of dismissal would result from the plaintiff failing to obey his order was proper grounds for the district court to dismiss the suit when the plaintiff did not comply despite the warning), cert. denied sub nom, Ballard v. Volunteers of America, 493 U.S. 1084 (1990); Fed.R.Civ.P. 41(b). In light of the court's recommendation, any pending motions (ECF No. 19) should be terminated as moot.
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).