Opinion
C/A 5:23-4034-BHH-KDW
05-06-2024
William Tyrel Flemming, Petitioner, v. Warden Peeple, Respondent.
REPORT AND RECOMMENDATION
KAYMANI D. WEST FLORENCE, UNITED STATES MAGISTRATE JUDGE
Petitioner William Tyrel Flemming (“Petitioner”), proceeding pro se, filed a Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On January 5, 2024, Respondent filed a Return and a Motion for Summary Judgment. ECF Nos. 32; 33. Because Petitioner 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. 33. Petitioner was specifically advised that if he failed to respond adequately, Respondent's Motion may be granted, thereby ending this case. On February 1, 2024, Petitioner filed a Motion for Extension of Time, seeking additional time to respond to the pending Motion. See ECF No. 35. That Motion was granted on February 2, 2024, and the court allowed Petitioner through March 4, 2024 to file a response. ECF No. 36.
However, notwithstanding the specific warning and instructions set forth in the court's Roseboro order, and despite being granted additional time to respond to the Motion, Petitioner failed to respond to the Motion. On March 11, 2024, the court issued an order directing the Petitioner to advise the court whether he wished to continue with his case and further directed Petitioner to file a response to Respondent's Motion by April 10, 2024. ECF No. 39. Petitioner was further advised that if he failed to respond, this action would be recommended for dismissal with prejudice for failure to prosecute. Petitioner has failed to file a response.
As such, it appears to the court that Petitioner does not oppose Respondent's 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, Clerk
United 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).