Opinion
C. A. 9:23-00038-TLW-MHC
10-13-2023
Willie Ritter, Plaintiff, v. South Carolina Department of Parole and Pardon Services, South Carolina Department of Corrections, Lee Correctional Institution, Jerry Adger, Brian Stirling, Kimberly Yon, Kenneth Nelson, Aurrah Rodgers, Aaron Joyner, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
This action has been filed by pro se Plaintiff Willie Ritter, alleging violations of his constitutional rights by the named Defendants. Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.
The Complaint and Amended Complaint contain statements that these documents were prepared by the “Freedom Justice Paralegal Group LLC.” ECF No. 1 at 8; ECF No. 10 at 28. However, Plaintiff signed the Complaint and the Amended Complaint, and there is no indication that he is represented by any attorney admitted to practice in this Court.
In a Proper Form Order dated February 9, 2023, Plaintiff was given an opportunity to provide the necessary information and paperwork to bring the case into proper form (by submitting summons forms and Forms USM-285). Plaintiff was warned that failure to provide the necessary information within the timetable set forth in the Proper Form Order would subject the case to dismissal. See ECF No. 7. Plaintiff provided some of the necessary Forms USM-285, but failed to provide the summons forms and the other Forms USM-285. He filed an Amended Complaint on March 6, 2023. ECF No. 10. In a Second Proper Form Order dated August 21, 2023, Plaintiff was directed to bring his case into proper form by providing a summons form listing Defendants South Carolina Department of Parole and Pardon Services (SCDPPS), the South Carolina Department of Corrections (SCDC), Lee Correctional Institution (LCI), Kimberly Yon, Kenneth Nelson, Aurrah Rogers, and Aaron Joyner, and to provide completed and signed Forms USM-285 for Defendants SCDPPS, LCI, and SCDC. He was warned that failure to provide the necessary information within the timeline set forth in the Second Proper Form Order would subject his case to dismissal. ECF No. 13.
The time to bring this case into proper form has now lapsed, and Plaintiff has failed to bring his case into proper form or otherwise respond to the Second Proper Form Order. Based on the foregoing, it is recommended that this action be DISMISSED, WITHOUT PREJUDICE, in accordance with Rule 41, Fed.R.Civ.P. See Link v. Wabash R.R. Co., 370 U.S. 626 (1962); Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989) (finding that district court's dismissal following an explicit and reasonable warning was not an abuse of discretion), cert. denied sub nom, Ballard v. Volunteers of America, 493 U.S. 1084 (1990).
Records from SCDC indicate that Plaintiff is no longer an inmate at SCDC. See SCDC Incarcerated Inmate Search, http://public.doc.state.sc.us/scdc-public/ [Search Inmate “Willie Ritter”] (last visited Oct. 13, 2023). This Court may take judicial notice of factual information located in postings on government websites. See Tisdale v. South Carolina Highway Patrol, No. 0:09-1009-HFF-PJG, 2009 WL 1491409, at *1 n. 1 (D.S.C. May 27, 2009), aff'd, 347 Fed.Appx. 965 (4th Cir. 2009). The Second Proper Form Order mailed to Plaintiff has not been returned to the Court and Plaintiff has submitted no forwarding address. The Proper Form Orders directed Plaintiff to always keep the Clerk of Court advised in writing if his address changed. See ECF Nos. 7 and 13.
The Clerk shall mail this Report and Recommendation to Plaintiff at his last known address. If Plaintiff satisfies the requirements for proceeding with this case as is set forth in the Second Proper Form Order within the time set forth for filing objections to this Report and Recommendation, the Clerk is directed to vacate this Report and Recommendation and return this file to the undersigned for further handling. However, if Plaintiff fails to do so, then at the end of the time for filing objections, the Clerk shall forward this Report and Recommendation to the District Judge for disposition. Ballard v. Carlson, 882 F.2d at 95 (Magistrate Judge's prior explicit warning that a recommendation of dismissal would result from Plaintiff failing to obey his order was proper grounds for the district court to dismiss suit when Plaintiff did not comply despite warning).
After a litigant has received one explicit warning as to the consequences of failing to timely comply with an order of a Magistrate Judge, and has failed to respond to that order, the district court may, under Fed.R.Civ.P. 41(b), dismiss the complaint based upon the litigant's failure to comply with that court order. See Simpson v. Welch, 900 F.2d 33, 35-36 (4th Cir. 1990); see also Ballard, 882 F.2d at 95-96 (holding that district court's dismissal following an explicit and reasonable warning was not an abuse of discretion).
The parties are also referred to the Notice Page attached hereto.
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 835
Charleston, South Carolina 29402
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).