Opinion
Civil Action No. 4:18-cv-1758-DCC-TER
09-11-2019
DON S. MANESS, Plaintiff, v. WARDEN WILLIAMS; MRS. GLIDEWELL; MR. WILLIAMS, CAPTAIN OF F-2; MRS. MADDOX, Defendants.
REPORT AND RECOMMENDATION
I. INTRODUCTION
Plaintiff, who is proceeding pro se, brings this action alleging that Defendants violated his constitutional rights. Presently before the court is Defendants' Motion for Summary Judgment (ECF No. 41). Because Plaintiff is proceeding pro se, he was advised on May 24, 2019, pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to the motion could result in dismissal of his case. A response was due by June 24, 2019, add an additional three days if served by mail. Plaintiff failed to file a response. On July 22, 2019, Plaintiff filed a motion for an extension of time to file a response. This motion was granted and Plaintiff was given until June 27, 2019, to file a response or his case may be dismissed for failure to prosecute pursuant to Rule 41b of the Federal Rules of Civil Procedure. Plaintiff has not filed a response to the motion. 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)(e), DSC. This report and recommendation is entered for review by the district judge. II. RULE 41(b) DISMISSAL
"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. Fed.R.Civ.P. 41(b)." Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989).
The Fourth Circuit, in Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978), recognizing that dismissal with prejudice is a harsh sanction which should not be invoked lightly, set forth four considerations in determining whether Rule 41(b) dismissal is appropriate: (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 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. Id. at 70.
Subsequently, however, the Fourth Circuit noted that "the four factors ... are not a rigid four-pronged test." Ballard, 882 F.2d at 95. "Here, we think 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.
In the present case, Plaintiff is proceeding pro se and, thus, is entirely responsible for his actions. It is solely through Plaintiff's neglect, and not that of an attorney, that Plaintiff has failed to respond to the motion for summary judgment despite the court's warnings that a failure to do so may result in dismissal. Accordingly, the undersigned concludes that Plaintiff has abandoned his claims against Defendants. III. CONCLUSION
For the reasons discussed above, it is recommended that Defendants' Motion for Summary Judgment (ECF No. 41) be granted and this case be dismissed pursuant to Fed.R.Civ.P. 41(b).
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge September 11, 2019
Florence, South Carolina