Opinion
C. A. 8:22-cv-02545-BHH-JDA
01-24-2024
Tori Staton, Plaintiff, v. Andrew Arcer, Officer Sergeant, in individual and official capacities, Defendant.[1]
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin, United States Magistrate Judge
This matter is before the Court on Defendant's motion for summary judgment and motion to dismiss for failure to prosecute. [Docs. 45; 52.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2), D.S.C., this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and to submit findings and recommendations to the District Court.
BACKGROUND
On September 12, 2023, Defendant filed a motion for summary judgment. [Doc. 45.] By Order of this Court on September 13, 2023, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Plaintiff was advised of the summary judgment/dismissal procedure and the possible consequences for failing to respond adequately. [Doc. 46.] Despite this explanation, Plaintiff elected not to respond to the motion.
As Plaintiff is proceeding pro se, on October 25, 2023, the Court extended his deadline to respond giving him until November 14, 2023, to file a response to Defendant's motion. [Doc. 49.] Plaintiff was specifically advised that if he failed to respond, this action would be dismissed for failure to prosecute. [Id.] After Plaintiff failed to file a response by that date, Defendant, on November 15, 2023, filed a motion to dismiss for lack of prosecution. [Doc. 52.] By Order of this Court issued the same day, pursuant Roseboro, Plaintiff was again advised of the summary judgment/dismissal procedure and the possible consequences for failing to respond adequately. [Doc. 53.] As of the filing of this Order, Plaintiff has not filed any response.
DISCUSSION
Based on the foregoing, it appears Plaintiff no longer wishes to pursue this action. “The Federal Rules of Civil Procedure recognize that courts must have the authority to control litigation before them, and this authority includes the power to order dismissal of an action for failure to comply with court orders.” Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (citing Fed.R.Civ.P. 41(b)). “Federal courts possess an inherent authority to dismiss cases with prejudice sua sponte.” Gantt v. Md. Div. of Corr., 894 F.Supp. 226, 229 (D. Md. 1995) (citing Link v. Wabash R. Co., 370 U.S. 626 (1962); White v. Raymark Indus., 783 F.2d 1175 (4th Cir. 1986); Zaczek v. Fauquier Cnty., 764 F.Supp. 1071, 1074 (E.D. Va.1991)).
The Fourth Circuit, in Davis v. Williams, recognizing that dismissal with prejudice is a harsh sanction that should not be invoked lightly, set forth four factors for determining whether Rule 41(b) dismissal is appropriate:
(1) the degree of personal responsibility on the part of the plaintiff;
(2) the amount of prejudice to the defendant caused by the delay;
(3) the presence or absence of a drawn out history of deliberately proceeding in a dilatory fashion; and
(4) the effectiveness of sanctions less drastic than dismissal.588 F.2d 69, 70 (4th Cir. 1978). Subsequently, however, the Fourth Circuit noted that “the four factors . . . are not a rigid four-pronged test,” and whether to dismiss depends on the particular circumstances of the case. Ballard, 882 F.2d at 95. For example, in Ballard, the court reasoned that “the Magistrate's explicit warning that a recommendation of dismissal would result from failure to obey his order is a critical fact that distinguishes this case from those cited by appellant.... In view of the warning, the district court had little alternative to dismissal. Any other course would have placed the credibility of the court in doubt and invited abuse.” Id. at 95-96.
At this point, Plaintiff has three times allowed the deadlines to pass without filing his response. Because Plaintiff is proceeding pro se, he is personally responsible for this failure. In this Court's Order of October 25, 2023, the Court clearly stated that if he failed to file his response, "his claims will be subject to dismissal for failure to prosecute pursuant to Rule of Civil Procedure 41(b), and for failure to comply with this Court's orders." [Doc. 49 at 1.] When Plaintiff did not file a response, Defendant filed a motion to dismiss for lack of prosecution [Doc. 52] and the Court issued another Roseboro Order directing Plaintiff to respond to that motion [Doc. 53]. However, Plaintiff did not file a response to that motion either. Because Plaintiff has already ignored Court Orders and deadlines, the Court concludes that sanctions less drastic than dismissal would not be effective.
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Defendant's motion to dismiss for failure to prosecute [Doc. 52] be GRANTED, that the case be DISMISSED pursuant to Federal Rule of Civil Procedure 41(b), and that Defendant's other pending motion [Doc. 45] be FOUND AS MOOT.
IT IS SO RECOMMENDED.