Opinion
C/A 4:23-1609-TMC-TER
03-28-2024
LEONEL RIVERA, Petitioner, v. WARDEN JANSON, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
The Petitioner, Leonel Rivera, (“Petitioner/Rivera”), appearing pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 on April 18, 2023. At the time of filing this action, Petitioner was housed at FCI Edgefield located in Edgefield, South Carolina. On January 25, 2024, the Respondent filed a Motion to Dismiss or, in the alternative, Motion for Summary Judgment. (ECF No. 24). The undersigned issued an order filed January 29, 2024, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), advising the Petitioner of the motion and the possible consequences if he failed to respond adequately. (ECF No. 25). Rivera failed to file a response.
This habeas corpus case was automatically referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02, DSC. Because this is a dispositive motion, this report and recommendation is entered for review by the district judge.
RULE 41 DISMISSAL
A complaint may be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989), cert. denied, 493 U.S. 1084 (1990), and Chandler Leasing Corp. v. Lopez, 669 F.2d 919 (4th Cir. 1982). In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:
(1) the degree of plaintiff's responsibility in failing to respond;
(2) the amount of prejudice to the defendant;
(3) the history of the plaintiff in proceeding in a dilatory manner; and, (4) the existence of less drastic sanctions other than dismissal. Davis v. Williams, 588 F.2d 69 (4th Cir. 1978).
In the present case, the Petitioner is proceeding pro se so he is entirely responsible for his actions. It is solely through Petitioner's neglect, and not that of an attorney, that no responses have been filed. Petitioner has not responded to Respondent's Motion to Dismiss/Summary Judgment or the court's order requiring him to respond. Further, in the motion, Respondent noted that Petitioner's projected release date, via Good Conduct Time Release, was March 26, 2024. Utilizing the Inmate Locator on the BOP Public Website at https://www.bop.gov, Petitioner was released from the Federal Bureau of Prisons (BOP) on March 15, 2024. Petitioner has not filed an updated address with the court pursuant to the court's order of April 25, 2023. (ECF No. 6). No other reasonable sanctions are available. Accordingly, it is recommended that this action be dismissed pursuant to Fed. R. Civ. Proc. 41(b) without prejudice.
CONCLUSION
Accordingly, it is recommended that the petition be dismissed pursuant to Rule 41b of the Federal Rules of Civil Procedure.
Respectfully Submitted, Petitioner's attention is directed to the important notice on the next page