Opinion
C. A. 7:24-cv-03217-TMC-KFM
07-19-2024
Shaneka Sharday Flournoy, Plaintiff, v. Plastic Omnium, Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
This is a civil action filed by a non-prisoner. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.
PROCEDURAL HISTORY
The plaintiff's complaint was entered on the docket on May 28, 2024 (doc. 1). In signing the complaint, the plaintiff acknowledged that she was responsible for notifying the clerk in writing of any change of address and that failure to keep her address updated with the court may lead to dismissal of the case (id. at 8). By order dated June 6, 2024, the plaintiff was given an opportunity to provide the necessary information to bring the case into proper form for evaluation and possible service of process (doc. 6). The plaintiff was warned that failure to provide the necessary information and paperwork within the timetable set in the order may subject the case to dismissal (id. at 1). The plaintiff was also advised of her duty to keep the court informed as to her current address (id. at 2).
The plaintiff did not respond to the order, so a second proper form order was issued on July 3, 2024 (doc. 10). The second proper form order warned the plaintiff a second time that failure to provide the necessary information and paperwork within the timetable set in the order may subject the case to dismissal (id. at 1). The second proper form order also reminded the plaintiff of her duty to keep the court informed as to her current address (id. at 2). The plaintiff did not respond to the court's June 6, 2024, or July 3, 2024, orders and the time for response has lapsed; as such, the plaintiff has failed to comply with orders of this court and to bring her case into proper form.
ALLEGATIONS
This is an employment discrimination action brought by the plaintiff, proceeding pro se (doc. 1). The plaintiff alleges that the defendant terminated her employment, failed to promote her, failed to accommodate her disability, and retaliated against her between August and November 2022 (id. at 5).
The plaintiff alleges that she was discriminated against based on a disability in violation of the Americans with Disabilities Act (“ADA”) (id. at 6). She contends that she suffers from fibroids which cause excessive bleeding and anemia (id.). Despite her disability, she contends she was “oppressed” by the defendant and forced to continue in a stressful job that required lifting over 100 pounds despite her doctor's note (id.). The plaintiff then requested additional leave from the defendants, but her leave was denied (id.). The plaintiff was then terminated by default based on having no more “points” (id.).
For relief, the plaintiff seeks money damages for lost wages (based on the denied promotion as well as having to take a lower paying job) and loss of insurance policies (id. at 7).
STANDARD OF REVIEW
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted,” is “frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
DISCUSSION
As noted above, the plaintiff filed this action seeking damages from the defendant. However, as set forth in more detail below, the plaintiff's complaint is subject to summary dismissal. It is well established that a court has the authority to dismiss a case pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989). “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) (emphasis added). 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. In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:
(1) the degree of personal responsibility on the part of the plaintiff;
(2) the amount of prejudice to the defendant caused by the delay;
(3) the history of the plaintiff in proceeding in a dilatory manner; and,
(4) the existence of less drastic sanctions other than dismissal.Davis v. Williams, 588 F.2d 69, 70 (4th Cir.1978).
Here, the factors weigh in favor of dismissal. With respect to factors (1) and (3), as noted, despite multiple opportunities, the plaintiff has failed to bring her case into proper form. In doing so, she has failed to comply with the court's orders of June 6, 2024, and July 3, 2024, which instructed the plaintiff to provide specific documentation to the court so that the case may be screened as required by 28 U.S.C. § 1915, and so the United States Marshals Service could attempt service of process if service was authorized (docs. 6; 10). Each order warned the plaintiff of the consequences of failing to comply with its instructions, including the dismissal of her case pursuant to Fed.R.Civ.P. 41(b) (docs. 6 at 1; 10 at 1). Despite these warnings, the plaintiff has not provided the court with the required documentation. Accordingly, as the plaintiff has failed to comply with the court's orders and has been previously warned that such failures could result in dismissal, it appears that less drastic sanctions would not be appropriate. As such, the undersigned recommends that the instant action be dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b) for failure to comply with orders of the court.
RECOMMENDATION
The plaintiff has failed to comply with the above-cited court orders; therefore, the undersigned recommends that the district court dismiss this action without prejudice, without leave to amend, and without issuance and service of process pursuant to Rule 41 of the Federal Rules of Civil Procedure. See Britt v. DeJoy, 45 F.4th 790, 791 (4th Cir. 2022) (published) (noting that “when a district court dismisses a complaint or all claims without providing leave to amend . . . the order dismissing the complaint is final and appealable”). The attention of the parties is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
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 250 East North Street, Room 2300 Greenville, South Carolina 29601
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).