Opinion
C. A. 3:23-1963-SAL-PJG
08-14-2023
Fay N. Scott, Plaintiff, v. South Carolina Office of Attorney General, Defendant.
ORDER AND REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE
Plaintiff Fay N. Scott, a self-represented litigant, brings this employment action. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). When she filed this action, Plaintiff filed a motion for leave to proceed in forma pauperis. However, the court issued a Report and Recommendation on May 23, 2023, recommending that Plaintiff's motion be denied and directing that she pay the filing fee within fourteen days if the assigned district judge adopted the recommendation. (ECF No. 8.) Plaintiff did not file objections to the court's Report and Recommendation. The Honorable Joseph F. Anderson, Senior United States District Judge, adopted the recommendation on June 27, 2023. The filing fee was due on July 11, 2023.
However, Plaintiff apparently did not receive Judge Anderson's Order, as the mailing was returned to the Clerk of Court as undeliverable by the United States Postal Service. (ECF No. 17.) There is no indication from the docket that Plaintiff did not receive the court's May 23 Report and Recommendation, and the docket does not reflect any communication from Plaintiff since she originally filed this case on May 11, 2023.
Consequently, this matter should be summarily dismissed for Plaintiff's failure to prosecute. “The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). A court may also sua sponte dismiss a case for lack of prosecution under Federal Rule of Civil Procedure 41(b). Id. at 630. “Given the inherent judicial authority to make such dismissals, a court may, in appropriate circumstances, enter such a dismissal sua sponte, even absent advance notice of ‘the possibility of dismissal.' ” Attkisson v. Holder, 925 F.3d 606, 625 (4th Cir. 2019) (quoting Link, 370 U.S. at 632-33).
Here, dismissal of Plaintiff's action is the only appropriate sanction for Plaintiff's failure to prosecute the case because the court has no way to communicate with Plaintiff and Plaintiff has not paid the filing fee. The court should dismiss the action without prejudice because the court has not authorized the issuance and service of process. Therefore, no parties would be prejudiced if Plaintiff refiles the action. Accordingly, the court recommends this action be summarily dismissed without prejudice.
If Plaintiff files objections or otherwise attempts to comply with the court's order, the Clerk of Court shall vacate this Report and Recommendation and refer the case back to the assigned magistrate judge.
Plaintiff's attention is directed to the important notice on the next page.
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
901 Richland Street
Columbia, South Carolina 29201
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).