Opinion
C/A 9:23-02069-BHH-MHC
09-14-2023
Conrad L. Slocumb, Plaintiff, v. South Carolina Department of Corrections, Director Bryan Stirling, Regional Director Whilington, Warden Nelson, Associate Warden Carter,[1] Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
This a civil action filed by pro se Plaintiff Conrad L. Slocumb. Plaintiff is a state prisoner at the South Carolina Department of Corrections (SCDC). 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.
In an Order (Proper Form Order) dated June 9, 2023, Plaintiff was given an opportunity to provide the necessary information and paperwork to bring the case into proper form for evaluation and possible service of process. The necessary information included a completed complaint form, a summons form listing every Defendant named in the case, and payment of the filing fee or a completed and signed Application to Proceed Without Prepayment of Fees and Affidavit (Form AO-240). Additional necessary information, if Plaintiff requested to proceed without prepayment of fees, included a completed Financial Certificate and a completed and signed Form USM-285 for each Defendant named in this case. Plaintiff was warned that failure to provide the necessary information to bring his case into proper form within the timetable set forth in the Proper Form Order would subject the case to dismissal. See ECF No. 3. On June 30, 2023, Plaintiff requested an extension of time. ECF No. 6. On July 10, 2023, a text order was issued granting Plaintiff's motion and the deadline for Plaintiff to bring his case into proper was extended until August 9, 2023. ECF No 7.
The extended 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 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), cert. denied sub nom, Ballard v. Volunteers of America, 493 U.S. 1084 (1990) (holding that district court's dismissal following an explicit and reasonable warning was not an abuse of discretion).
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 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).