Opinion
C. A. 22-1618-HMH-PJG
01-09-2023
Steven M. Smith, Plaintiff, v. Lt. Woods; Sgt. Brooks; Collins, Defendants.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE
The plaintiff, who filed this action as a pretrial detainee proceeding pro se, brought this civil rights action seeking relief pursuant to 42 U.S.C. § 1983. 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.). On November 4, 2022, the defendants filed a motion for summary judgment. (ECF No. 50.) By order of this court filed November 7, 2022, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the dismissal and summary judgment procedures and the possible consequences if he failed to respond adequately. (ECF No. 51.) Plaintiff filed a one-page response in opposition to the defendants' motion on November 14, 2022. (ECF No. 56.) 1
This order was returned as undeliverable by the United States Postal Service. (ECF No. 61.)
However, since that date, all of the plaintiff's mail from the court has been returned as undeliverable. On June 1, 2022, June 30, 2022, and July 20, 2022, the court entered orders in this matter that included the following instructions to the plaintiff:
The court notes that the plaintiff filed discovery motions on November 4, 2022 and his response in opposition to the defendants' summary judgment motion on November 14, 2022 in which he erroneously listed the zip code of his address at the Orangeburg County Detention Center as “29008” rather than “29118.” (ECF No. 46; ECF No. 46-1 at 1; ECF No. 56.) Although the Clerk of Court initially modified the plaintiff's address to reflect the change and re-mailed court documents to the revised address, the court later corrected the plaintiff's address to reflect the accurate zip code for the Orangeburg County Detention Center and attempted to re-mail the court documents to the accurate address. However, all of these re-mailings were returned as undeliverable as well. Notably, even the mailings that were sent to the incorrect 29008 zip code and returned as undeliverable were clearly received by the Orangeburg County Detention Center, as indicated by the “Return to Sender” ink stamps on the envelopes. (See, e.g., ECF No. 61-1 at 1; ECF No. 64-1 at 2.) Thus, the incorrect address does not appear to be the cause of the returned mail; rather, that is apparently due to the plaintiff's release from the detention center, as indicated on the returned mail. (See ECF No. 64-1 at 2.)
If your mailing address changes, you must notify the Clerk of Court in writing . . . and provide the court with your new address. This assures that you will receive orders or other matters that specify deadlines for you to meet. If you miss a deadline because of your failure to notify the court that your address changed, your case may be dismissed, and your failure to notify the court will not be excused.
(ECF No. 6 at 2; ECF No. 13 at 3; ECF No. 19 at 3.) Notably, in October, the plaintiff filed a notice of change of address indicating that he had been transferred from the Bamberg County Detention Center to the Orangeburg County Detention Center, thus demonstrating that he was aware of his duty to notify the court of any change of his address. (See ECF No. 39.) As previously mentioned, one of the returned mail envelopes indicates that the plaintiff is “not in jail or out of jail.” (ECF No. 64-1 at 2.) Thus, the plaintiff has failed to comply with the court's orders and the court now has no way of contacting the plaintiff. 2
These orders were not returned to the Clerk of Court as undeliverable by the United States Postal Service.
RECOMMENDATION
Accordingly, it is recommended that this action be dismissed with prejudice for failure to comply with an order of the court. See Davis, 588 F.2d at 70; Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (stating that magistrate judge's prior explicit warning that a recommendation of dismissal would result from the plaintiff failing to obey his order was proper grounds for the district court to dismiss the suit when the plaintiff did not comply despite the warning), cert. denied sub nom, Ballard v. Volunteers of America, 493 U.S. 1084 (1990); Fed.R.Civ.P. 41(b).
The parties' attention is directed to the important notice on the next page. 3
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). 4