Opinion
C. A. 4:23-5280-SAL-TER
03-05-2024
ARYEE HENDERSON, Plaintiff, v. NURSE SCOTT AND NURSE GREGG, 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 October 23, 2023, alleging a violation of his constitutional rights. Plaintiff is currently housed at the Lee Correctional Institution. On January 17, 2024, Defendant Scott filed a motion to dismiss pursuant to Rule 12(b)(6) and 12(b)(5) in conjunction with a memorandum in support. (ECF No. 20). As the Plaintiff is proceeding pro se, the court issued an order on or about January 19, 2024, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the motion to dismiss procedure and the possible consequences if he failed to respond adequately. Plaintiff failed to file a response.
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.
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 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 the motion to dismiss. Plaintiff has not responded to the motion to dismiss on behalf of Nurse Scott or the court's order requiring him to respond. The undersigned concludes the Plaintiff has abandoned this lawsuit as to Nurse Scott. It appears there are no less drastic sanctions available.
Plaintiff has several active cases at this time. It is noted that Plaintiff recently filed a thirty-four page amended complaint in C/A No.: 4:23-cv-03022-SAL-TER and a motion and a response to summary judgment in C/A No.: 4:23-cv-03458-SAL=TER.
CONCLUSION
Based on the above reasoning, it is RECOMMENDED that this action against Defendant Scott be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.