Opinion
C. A. 5:21-cv-01270-RMG-KDW
02-14-2022
Steven A. Morris, Plaintiff, v. Deputy Prince, Defendant.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE
Plaintiff, proceeding pro se and in forma pauperis, brought this action alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. On October 18, 2021, Defendant filed a Motion for Summary Judgment, ECF No. 28. Because Plaintiff 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. 29. Plaintiff was specifically advised that if he failed to respond adequately, the Defendant's Motion for Summary Judgment may be granted, thereby ending this case against them. See Id. However, notwithstanding the specific warning and instructions set forth in the court's Roseboro order, Plaintiff has failed to respond to Defendant's Motion for Summary Judgment.
On January 10, 2022, the court directed Plaintiff to advise the court whether he wished to continue with his case and further directed the Plaintiff to file a response to Defendant's Motions by February 7, 2022. ECF No. 34. Plaintiff was further advised that if he failed to respond, this action would be recommended for dismissal with prejudice for failure to prosecute. ECF No. 34. Plaintiff filed no response.
As such, it appears to the court that Plaintiff does not oppose Defendant'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) plaintiffs 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).
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.”