Opinion
C. A. 8:23-cv-04771-JFA-BM
04-12-2024
Venable Mitchell, a/k/a Venable Deon Mitchell, Plaintiff, v. Dr. Boykin, Dentist; Mrs. Garcia, Dental Asst., Defendants.[1]
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Bristow Marchant United States Magistrate Judge
This matter is before the Court on Defendants' motion to dismiss and the Court's Order to Show Cause why the case should not be dismissed for failure to prosecute. ECF Nos. 36; 45. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2), D.S.C., this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and to submit findings and recommendations to the District Court.
BACKGROUND
On February 12, 2024, Defendants filed a motion to dismiss. ECF No. 36. By Order of this Court dated February 13, 2024, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) (the “Roseboro Order”), Plaintiff was advised of the summary judgment/dismissal procedure and the possible consequences for failing to respond adequately. ECF No. 38. Despite this explanation, Plaintiff did not respond to the motion. Further, the Roseboro Order was returned to the Court as undeliverable with a notation “Released Unknown.” ECF Nos. 44; 44-1.
Plaintiff was previously ordered to keep the Court apprised of any change in his address:
You are ordered to always keep the Clerk of Court advised in writing (250 East North Street, Suite 2300, Greenville, South Carolina 29601) if your address changes for any reason, so as to assure that orders or other matters that specify deadlines for you to meet will be received by you. 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. Therefore, if you have a change of address before this case is ended, you must comply with this Order by immediately advising the Clerk of Court in writing of such change of address and providing the Court with the docket number of all pending cases you have filed with this Court. Your failure to do so will not be excused by the Court.ECF No. 7 at 3 (emphasis in original). However, Plaintiff has not notified the Court of any change of address at which he can be reached.
On March 19, 2024, the Court entered an Order directing Plaintiff to show cause by April 1, 2024, why this case should not be dismissed. ECF No. 45. Plaintiff was warned that failure to respond would result in this action being recommended for dismissal for failure to prosecute. Id. at 2. As of the filing of this Report and Recommendation, Plaintiff has not filed any response.
DISCUSSION
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 Indus., 783 F.2d 1175 (4th Cir. 1986); Zaczek v. Fauquier Cnty., 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;
(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.588 F.2d 69, 70 (4th Cir. 1978). 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.
At this point, Plaintiff has twice allowed the deadlines to pass without filing his response. Because Plaintiff is proceeding pro se, he is personally responsible for this failure. In this Court's Roseboro Order of March 19, 2024, the Court clearly stated that if Plaintiff failed to file his response, “the court may grant the defendant's motion, which may end your case.” ECF No. 38 at 1. When Plaintiff did not file a response, this Court entered an Order dated March 19, 2024, and clearly stated that, if Plaintiff failed to file his response, “the undersigned will recommend this case be dismissed for failure to prosecute.” ECF No. 45 at 2.. However, Plaintiff did not file a response to that Order either.
Further, as noted, Plaintiff's mail has been returned to the Court as undeliverable and Plaintiff has not notified the Court of any change of address at which he can be reached. Thus, he has failed to comply with the Court's prior Orders, and as a result, the Court has no means of contacting him concerning his case. As such, it appears to the Court that he wishes to abandon his case. Because Plaintiff has already ignored Court Orders and deadlines, the Court concludes that sanctions less drastic than dismissal would not be effective.
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the case be DISMISSED pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute and comply with the Court's Orders, and that Defendants' pending motion (ECF No. 36) be FOUND AS MOOT.
IT IS SO RECOMMENDED.