Opinion
C/A 5:22-1860-JD-KDW
12-28-2022
Michael Shane Miller, Petitioner, v. Warden of FCI Edgefield Satellite Camp, Respondent.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
Petitioner Michael Shane Miller (“Petitioner”), proceeding pro se, filed a Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On September 19, 2022, Respondent filed a Motion for Summary Judgment. ECF No. 26. Because Petitioner is proceeding pro se, the court entered an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising him of the importance of such motions and of the need for him to file adequate responses. ECF No. 27. Petitioner was specifically advised that if he failed to respond adequately, Respondent's Motion may be granted, thereby ending this case. On September 28, 2022, the court received a notification that a text order sent to Petitioner was returned as undeliverable. ECF No. 31. It was noted on the envelope that inmate was no longer at that facility. ECF No. 31. That same day, the clerk's office completed a search on the Federal Bureau of Prisons Inmate Locater and determined that Petitioner's new address was: Michael Shane Miller, #27049-509, RRM Raleigh, Old NC 75 Highway, P.O. Box 7000, Butner, NC 27509. The clerk's office sent a name/address update form to Petitioner at this address. On October 4, 2022, the Roseboro order was also returned to the court as undeliverable. ECF No. 31.
On November 3, 2022, the court directed Petitioner to advise the court whether he wished to continue with his case and further directed Petitioner to file a response to Respondent's Motion by December 5, 2022. ECF No. 34. This order was mailed to Plaintiff at both the address the court has on the docket, as well as the new address found on the Federal Bureau of Prisons Inmate Locator. Petitioner has failed to file a response.
As of the date of this R&R, the Federal Bureau of Prisons has the RRM Raleigh address listed for Petitioner. On November 17, 2022, the order mailed to FCI Edgefield Satellite Camp was returned as undeliverable. ECF No. 36.
Notwithstanding Petitioner's knowledge that his case is pending, and despite having sent Petitioner a name and address update form, as well as mailing an order to the most current address available with the Federal Bureau of Prisons advising Petitioner that this action would be recommended for dismissal should he fail to respond, Petitioner has failed to respond to the order or otherwise provided the court with an acknowledgment of any updated address. The last filing received by Petitioner was on July 13, 2022. As such, it appears to the court that Petitioner does not oppose Respondent's Motion and wishes to abandon his action. See Fed.R.Civ.P. 41(b); Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978) (noting that a court deciding whether to dismiss a case under Fed.R.Civ.P. 41(b) must balance the policy of deciding cases on their merits against “sound judicial administration.” In so doing, the court must weigh: 1) plaintiff's responsibility for failure to prosecute, 2) prejudice to defendant from delay, 3) history of delay, and 4) effectiveness of lesser sanctions.); see also Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989) (noting and applying Davis factors in dismissing case under Fed.R.Civ.P. 41(b)); Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982) (same). Based upon the above, and taking into account the factors in Davis, Ballard, and Chandler, the undersigned recommends this action be dismissed with prejudice for failure to prosecute pursuant to Fed.R.Civ.P. 41(b). Further, Defendants' Motion to Compel, ECF No. 50, is denied as moot.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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 2317
Florence, South Carolina 29503
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).