Opinion
C. A. 5:23-1415-CMC-KDW
01-24-2024
Terrell Nelson, Plaintiff, v. Warden John Palmer; A/W Yolanda Turner; A/W Thomas Robertson; Major Stanley Terry; Lt. Taylor; Head Classification Greene; Lieutenant Kelvin Avery; Warden Anthony Burton; Phillips Business Office; QMHP Kevin Cunningham; Nurse Samantha Burdette; Lieutenant Parks; Dr. Megan Howard; Dr. Rose Pitt; Nurse Riley McCormack; Mental Health Officer Dorn; Willie Davis, Regional Director; Dr. Labrador, Director Men's Mental Health Services; Lieutenant Miranda Boyd; Director Bryan Stirling; Administrative Captain Heflin; Lieutenant Norman; Captain Campbell; Mrs. K. Ardister-Brown; Sergeant Letman; Lieutenant B. Phillips; Nurse Moore; and Sergeant Durant, Defendants.
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge, proceeding pro se and in forma pauperis, brought this action alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. On November 6, 2023, Defendant Riley McCormackfiled a Motion to Dismiss for Failure to State a Claim. ECF No. 111. 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. 112. Plaintiff was specifically advised that if he failed to respond adequately, the Defendant's Motion may be granted, thereby ending this case against Defendant McCormack. See id. However, notwithstanding the specific warning and instructions set forth in the court's Roseboro Order, Plaintiff failed to respond to the Motion to Dismiss. The deadline to respond was December 8, 2023.
As noted within the Motion, Defendant McCormack was misidentified by Plaintiff as “MacCormack.”
On December 15, 2023, the court ordered Plaintiff to advise the court whether he wished to continue with the case against Defendant McCormack and to file a response to the Motion by January 16, 2024. ECF No. 117. As of today's date, Plaintiff has still failed to file any response. The Motion has now been pending without any response for over two months.
As such, it appears to the court that Plaintiff does not oppose Defendant's Motion and wishes to abandon his action against Defendant McCormack. 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 against Defendant McCormack 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.”
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).