Opinion
C/A 4:23-2396-BHH-TER
07-08-2024
MICHAEL D. GALLMAN, Plaintiff, v. LIEUTENANT FREEMAN, Defendant.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
PROCEDURAL BACKGROUND
Plaintiff, a prisoner proceeding pro se, filed this action under 42 U.S.C. § 1983 on June 1, 2023, and an amended complaint on June 20, 2023, alleging a violation of his constitutional rights. On May 23, 2024, Defendant Freeman filed a motion to dismiss for lack of prosecution and for failure to cooperate in discovery. (ECF No. 59). Specifically, Defendant argues the case should be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure asserting Plaintiff was released from custody of the South Carolina Department of Corrections (SCDC) on April 1, 2024, has not informed the Court or SCDC of his change of address, and “is not meaningfully cooperating with discovery as he was duly copied with a Notice of his Deposition to all addresses on file with SCDC and he did not appear.” Id.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), DSC. Because this is a dispositive motion, the report and recommendation is entered for review by the district judge.
Defendants State of South Carolina, South Carolina Department of Corrections, Evans Correctional Institution, and Donnie Stonebreaker were dismissed from this action by order filed September 20, 2023. (ECF No. 33).
As the Plaintiff is proceeding pro se, the court issued an order on or about May 24, 2024, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the motion to dismiss/summary judgment procedure and the possible consequences if he failed to respond adequately. (ECF No. 60). The Roseboro order was returned to the Clerk of Court's office via United States Postal Service on July 2, 2024, marked “Return to Sender.” (ECF No. 62). Plaintiff failed to file a response and has not provided the court with an updated address.
RULE 41(B) DISMISSAL
A complaint may be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989), cert. denied, 493 U.S. 1084 (1990), and Chandler Leasing Corp. v. Lopez, 669 F.2d 919 (4th Cir. 1982). In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:
(1) the degree of plaintiff's responsibility in failing to respond;
(2) the amount of prejudice to the defendant;
(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 (4th Cir. 1978).
In the motion to dismiss, Defendant asserts that during the process of verifying the Plaintiff's current housing location within the SCDC for service of a Motion for Leave to Take Plaintiff's Deposition, it was discovered that Plaintiff had been released from SCDC custody on April 1, 2024. Defendant attached the affidavit of Deputy General Counsel John Steadman (“Steadman”) of SCDC who attests that Plaintiff was released from SCDC custody on April 1, 2024, after serving the maximum time on his sentence. (ECF No. 59-1). Further, Defendant asserts that Steadman provided any and all addresses that were on file with the SCDC for Plaintiff. Id. Defendant's counsel then utilized those addresses in an attempt to serve a Notice of Deposition to take Plaintiff's deposition on May 3, 2024. Plaintiff did not appear for his deposition so a Certificate of Non-Appearance was taken and attached to the motion as Exhibit B. (ECF No. 59-2).
In the present case, the Plaintiff is proceeding pro se so he is entirely responsible for his actions. It is solely through Plaintiff's neglect, and not that of an attorney, that no responses have been filed to this motion to dismiss. Plaintiff has not responded to Defendant's motion to dismiss for lack of prosecution or the court's order requiring him to respond. Previous to Defendant's motion, mail to the Plaintiff was returned to the Clerk of Court's office via United States Postal Service on April 29, 2024, May 2, 2024, and May 17, 2024, marked “Return to Sender” and “unable to forward.” (ECF Nos. 54, 56, and 58). Plaintiff has not responded to the motion or provided the court with an updated address. The undersigned concludes the Plaintiff has abandoned this lawsuit. It appears there are no less drastic sanctions available.
Accordingly, it is recommended that Defendant's motion to dismiss for lack of prosecution (ECF No. 59) be granted and this action dismissed pursuant to Fed. R. Civ. Proc. 41(b) with prejudice.
CONCLUSION
Based on the above reasoning, it is RECOMMENDED that Defendant's motion to dismiss for lack of prosecution (ECF No. 59) be granted and this action dismissed for failure to prosecute pursuant to Fed. R. Civ. Proc. 41(b) with prejudice.
The parties' attention is directed to the important information on the attached notice.'