Opinion
C/A No. 8:16-cv-02497-PMD-JDA
02-28-2017
Steven Galloway, Plaintiff, v. Beverly A. Wood, et al. Defendants.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Plaintiff brought this action seeking relief pursuant to 42 U.S.C. § 1983. On October 21, 2016, and November 8, 2016, Defendants filed motions to dismiss. [Docs. 31, 38.] By Orders of this Court on October 25, 2016, and November 9, 2016, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Plaintiff was advised of the summary judgment/dismissal procedure and the possible consequences if he failed to respond adequately. [Docs. 33, 39.] On December 7, 2016, Plaintiff was granted an extension of time, until January 6, 2017, to respond to the pending motions to dismiss. [Doc. 47.] Despite the explanations regarding the consequences for failing to respond, Plaintiff failed to respond to the motions.
As Plaintiff is proceeding pro se, the Court filed an Order on January 11, 2017, giving Plaintiff through January 31, 2017, to respond to the motions to dismiss. [Doc. 54.] Plaintiff was specifically advised that if he failed to respond, this action would be dismissed for failure to prosecute. [Id.] On January 23, 2017, Plaintiff was granted an extension of time, until February 22, 2017, to respond to the pending motions to dismiss. [Doc. 58.] However, Plaintiff has failed to respond to the motions.
Based on the foregoing, it appears Plaintiff no longer wishes to pursue this action. "The Federal Rules of Civil Procedure recognize that courts must have the authority to control litigation before them, and this authority includes the power to order dismissal of an action for failure to comply with court orders." Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (citing Fed. R. Civ. P. 41(b)). "Federal courts possess an inherent authority to dismiss cases with prejudice sua sponte." Gantt v. Md. Div. of Corr., 894 F. Supp. 226, 229 (D. Md. 1995) (citing Link v. Wabash R. Co., 370 U.S. 626 (1962); White v. Raymark Indust., Inc., 783 F.2d 1175 (4th Cir. 1986); Zaczek v. Fauquier Cnty., Va., 764 F. Supp. 1071, 1074 (E.D. Va.1991)).
The Fourth Circuit, in Davis v. Williams, recognizing that dismissal with prejudice is a harsh sanction that should not be invoked lightly, set forth four factors for determining whether Rule 41(b) dismissal is appropriate:
(1) the degree of personal responsibility on the part of the plaintiff;588 F.2d 69, 70 (4th Cir. 1978) (citing McCargo v. Hedrick, 545 F.2d 393, 396 (4th Cir. 1976)). Subsequently, however, the Fourth Circuit noted that "the four factors . . . are not a rigid four-pronged test," and whether to dismiss depends on the particular circumstances of the case. Ballard, 882 F.2d at 95. For example, in Ballard, the court reasoned that "the Magistrate's explicit warning that a recommendation of dismissal would result from failure to obey his order is a critical fact that distinguishes this case from those cited by appellant. . . . In view of the warning, the district court had little alternative to dismissal. Any other course would have placed the credibility of the court in doubt and invited abuse." Id. at 95-96.
(2) the amount of prejudice to the defendant caused by the delay;
(3) the presence or absence of a drawn out history of deliberately proceeding in a dilatory fashion; and
(4) the effectiveness of sanctions less drastic than dismissal.
As Plaintiff is proceeding pro se, he is personally responsible for his failure to file responses to the motions to dismiss. Plaintiff has had over four months to respond to the motion to dismiss filed by Defendants Popella, Moody, Cartledge, Valero, Bracken, Lasley, Wright, Binkly, Church, and Cole. Plaintiff's initial response was due by December 1, 2016, and extended to January 6, 2017; despite being advised of the possible consequences if he failed to adequately respond, Plaintiff elected not to respond. Plaintiff has had over three months to respond to the motion to dismiss filed by Defendants Goodwin, Wood, Gray, Jones, Harris, and Atkinson. Plaintiff's initial response was due by December 15, 2016, and extended to January 6, 2017; despite being advised of the possible consequences if he failed to adequately respond, Plaintiff elected not to respond. The Court filed another Order, reminding Plaintiff responses were due and giving him additional time—until January 31, 2017—to respond. Moreover, the Court subsequently extended the deadline for Plaintiff to respond to February 22, 2017. The Court has warned Plaintiff the case would be dismissed pursuant to Rule 41(b) if Plaintiff failed to file responses. Despite this explanation, Plaintiff has elected not to respond. Because Plaintiff has already ignored Court Orders and deadlines, sanctions less drastic than dismissal would not be effective.
Additionally, Plaintiff has failed to respond to the Court's October 21, 2016, Order despite being granted extensions to respond. [See Docs. 28, 47, 58.]
Wherefore, based upon the foregoing, the Court recommends the case be DISMISSED pursuant to Federal Rule of Civil Procedure 41(b). It is further recommended that Defendants' motions to dismiss [Docs. 31, 38] be found as moot and Plaintiff's motion for preliminary injunction [Doc. 42] be found as moot.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge February 28, 2017
Greenville, South Carolina