Opinion
C. A. 9:23-cv-00393-JDA-MHC
04-24-2024
Gong Yong, Petitioner, v. Warden Jansen, Respondent.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Petitioner, proceeding pro se, filed a habeas petition pursuant to 28 U.S.C. § 2241. Pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.
By Order dated March 7, 2023 (“Proper Form and Address Order”), Petitioner was given a specific time frame in which to bring this case into proper form, and he was specifically “ordered to always keep the Clerk of Court advised in writing . . . if [his] address changes for any reason.” ECF No. 5 at 6 (emphasis in original). The Proper Form and Address Order also warned Petitioner of the following: “If as a result of your failure to comply with this Order, you fail to meet a deadline set by this court, your case may be dismissed for violating this Order.” Id. (emphasis in original). The Proper Form and Address Order was mailed to Petitioner on March 7, 2023, at his address of record at Edgefield Federal Correctional Institution (“FCI-Edgefield”), see ECF No. 6, and Petitioner filed a response with an Amended Petition and a motion to proceed in forma pauperis on March 24, 2023, ECF Nos. 9-10.
Petitioner has not filed any documents with the Court since March 24, 2023. See generally docket. Moreover, all mail sent from the Court to Petitioner at FCI-Edgefield since October 2023 has been returned undeliverable. See ECF Nos. 14, 17, 21, 25. For instance, on November 27, 2023, mail sent to Petitioner on October 10, 2023, was returned undeliverable with a notation on the envelope that “Inmate Not At This Facility.” ECF No. 17. Similarly, mail sent from the Court to Petitioner at FCI-Edgefield in February 2024 was returned undeliverable on March 4, 2024, with a notation that “Inmate Not At This Facility.” ECF No. 25.
On November 29, 2023, Respondent filed a Motion to Dismiss and for Summary Judgment (“Respondent's Motion”). ECF No. 18. As Petitioner is proceeding pro se, the Court entered a Roseboro Order, advising him of the importance of a dispositive motion and of the need to file an adequate response. ECF No. 22. Petitioner was specifically advised that if he failed to file a properly supported response, Respondent's Motion may be granted, thereby ending his case. Id. On February 23, 2024, the undersigned entered the following text order:
TEXT ORDER. Petitioner's address of record is at FCI Edgefield, which is located in Edgefield, South Carolina. However, on November 27, 2023, mail sent to Petitioner at FCI-Edgefield was returned to this court, with a notation that the mail was undeliverable because the inmate was not at the facility. ECF No. 17. The Bureau of Prisons Find an inmate locator listing for Petitioner, which the Court takes judicial notice of as per Fed. R. Evid 201, shows that Petitioner is now incarcerated in Victorville USP, see https://www.bop.gov/inmateloc/ (last visited Feb. 22, 2024), which is located in Victorville, California, see https://www.bop.gov/locations/institutions/vip/ (last visited Feb. 22, 2024). The clerk of court is directed to re-send the returned mail, see ECF No. 17, as well as any subsequent Orders from the Court, to Petitioner at the Victorville USP address listed by the BOP. Further, if Petitioner has indeed moved from FCI-Edgefield, Petitioner is ORDERED to file a written Notice of Change of Address in this case to inform the clerk of court of his address change so that his address of record can be updated. AND IT IS SO ORDERED.ECF No. 23. The clerk of court mailed the Roseboro Order along with five other Court filings to Petitioner at the USP Victorville address on February 23, 2024. ECF No. 24. More than two months have passed and that mail has not been returned undeliverable. However, Petitioner has not filed a Notice of Change of Address, a response in opposition to Respondent's Motion, or any other communication with the Court. See generally docket. The Bureau of Prisons Find an inmate locator shows that Petitioner is still incarcerated at Victorville USP. See https://www.bop.gov/inmateloc/ (last visited Apr. 24, 2024).
Federal courts have the inherent power to dismiss an action, either sua sponte or on a party's motion, for failure to prosecute. See Link v. Wabash R.R. Co., 370 U.S. 626, 629-32 (1962) (explaining that the “power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts.”); see also Fed.R.Civ.P. 41(b). In considering whether to dismiss a case for failure to prosecute, a district court should consider the following four criteria: “(1) the degree of personal responsibility of the plaintiff, (2) the amount of prejudice caused the defendant, (3) the existence of ‘a drawn out history of deliberately proceeding in a dilatory fashion,' and (4) the existence of a sanction less drastic than dismissal.” Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982) (quoting Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978)).
Based on the foregoing procedural history, the undersigned finds that Petitioner meets the criteria for dismissal under Lopez. Petitioner is personally responsible for proceeding in a dilatory fashion; Respondent is suffering prejudice because of having to expend time and resources on a case in which Petitioner is unresponsive; and no sanctions other than dismissal appear to exist, as Petitioner has otherwise failed to respond to Court filings or update his address despite Court orders requiring him to do so. See Lopez, 669 F.2d at 920.
Accordingly, it is RECOMMENDED that this action be DISMISSED for lack of prosecution. See Davis, 588 F.2d at 70; Fed.R.Civ.P. 41(b); see also Coker v. Int'l Paper Co., No. 08-1865, 2010 WL 1072643, at *2 (D.S.C. Mar. 18, 2010) (noting that a plaintiff can abandon claims by failing to address them in response to a dispositive motion); Jones v. Family Health Ctr., Inc., 323 F.Supp.2d 681, 690 (D.S.C. 2003) (noting that a claim not addressed in opposition memorandum had been abandoned).
The Clerk shall mail this Report and Recommendation to Petitioner at both the FCI-Edgefield address of record and the USP Victorville address documented at ECF No. 24. If Petitioner provides a response to Respondent's Motion within the time set forth for filing objections to this Report and Recommendation, the Clerk is directed to vacate this Report and Recommendation and return this file to the undersigned for further handling.
If, however, no response is filed, the Clerk shall forward this Report and Recommendation to the District Judge for disposition. Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (Magistrate Judge's prior explicit warning that a recommendation of dismissal would result from plaintiff failing to obey his order was proper grounds for the district court to dismiss suit when plaintiff did not comply despite warning).
After a litigant has received one explicit warning as to the consequences of failing to timely comply with an order of a Magistrate Judge, and has failed to respond to that order, the district court may, under Federal Rule of Civil Procedure 41(b), dismiss the complaint based upon the litigant's failure to comply with that court order. See Simpson v. Welch, 900 F.2d 33, 35-36 (4th Cir. 1990); see also Ballard, 882 F.2d at 95-96 (holding that district court's dismissal following an explicit and reasonable warning was not an abuse of discretion).
It is so RECOMMENDED.
The parties are referred to the Notice Page attached hereto.
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 835 Charleston, South Carolina 29402
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).