Opinion
Civil Action 6:21-3475-JD-KFM
10-25-2022
Cederick Jerome Wise, Plaintiff, v. Christopher Poindexter, Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge
The plaintiff, a state prisoner proceeding pro se, filed this action on October 22, 2021, pursuant to 42 U.S.C. § 1983. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under Section 1983.
In his original complaint, the plaintiff alleged violations of his constitutional rights by several employees of the South Carolina Department of Corrections (“SCDC”) during his incarceration in Lieber Correctional Institution (doc. 1). By order issued December 8, 2021, the undersigned found that the plaintiff's complaint, other than his excessive force claim against defendant Poindexter, was subject to dismissal as it failed to state a claim upon which relief may be granted (doc. 12). The plaintiff filed an amended complaint on January 3, 2022 (doc. 14). On January 14, 2022, the undersigned authorized service of process of the amended complaint with respect to the excessive force claim against defendant Poindexter only (doc. 17). The undersigned also issued a report and recommendation that the plaintiff's remaining claims be dismissed because the plaintiff had not cured the deficiencies identified in his original complaint (doc. 19). The Honorable Joseph Dawson, III, United States District Judge, adopted the recommendation, dismissing all of the plaintiff's claims with the exception of the excessive force claim against defendant Poindexter with prejudice and without issuance and service of process (doc. 23).
Defendant Poindexter was personally served with the summons and amended complaint on February 11, 2022 (doc. 25). Accordingly, his answer was due by March 4, 2022. Fed.R.Civ.P. 12(a)(1). Defendant Poindexter has not filed a responsive pleading and has not appeared in this action. On May 11,2022, the Clerk of Court entered defendant Poindexter's default. Id. 55(a) (“When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.”). A copy of the Clerk of Court's entry of default was mailed to defendant Poindexter at Lieber Correctional Institution (doc. 28). The envelope was returned to the Clerk of Court as undeliverable on May 20, 2022 (doc. 31). Written on the envelope was the statement, “No longer work @!” (id.).
Based on the foregoing, on September 27, 2022, the undersigned issued an order finding that defendant Poindexter had not filed a responsive pleading or motion within the appropriate time period and that the Clerk of Court had entered defendant Poindexter's default and noting that the plaintiff should proceed in accordance with Federal Rule of Civil Procedure 55(b) to apply to the court for a default judgment against defendant Poindexter (doc. 37). The plaintiff was notified that if he failed to file a motion for default judgment by October 19, 2022, the undersigned would recommend that this action be dismissed for failure to prosecute pursuant to Rule 41(b), and the dismissal would be considered an adjudication on the merits, i.e., with prejudice (id.). On September 28, 2022, the order was mailed to the plaintiff at his address of record. On October 7, 2022, the order that was mailed to the plaintiff was returned to the Clerk of Court marked “Return to Sender. Inmate Released” (doc. 39). Also, handwritten on the envelope were the words “Community Released” (id.). The plaintiff has been previously advised that he must keep the Clerk of Court apprised if his address changes for any reason and that if as a result of his failure to comply he fails to meet a deadline, his case may be dismissed (doc. 7).
The plaintiff last changed his address on May 27, 2022, when he notified the Clerk of Court that he had been transferred from Broad River Correctional Institution to McCormick Correctional Institution (doc. 32).
It appears that the plaintiff was released several months ago. In a habeas case filed in this court by the plaintiff, mail sent to the plaintiff by the Clerk of Court was returned marked “Return to Sender. Inmate Released” on August 1,2022. Wise v. Nelson, C. A. No. 6:22-cv-836-JD (doc. 19).
A complaint may be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989). In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:
(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 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, 70 (4th Cir.1978) (citing McCargo v. Hedrick, 545 F.2d 393, 396 (4th Cir. 1976)). These 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” was an important factor supporting dismissal. Id. at 95-96 (citation omitted).
In the present case, the plaintiff is proceeding pro se, and he is thus entirely responsible for his actions. It is solely through the plaintiff's neglect, and not that of an attorney, that the plaintiff has failed to keep the Clerk of Court advised of his change of address and has failed to comply with this court's orders. Accordingly, the undersigned concludes the plaintiff has abandoned this lawsuit. No other reasonable sanctions are available.
Based on the foregoing, it appears the plaintiff no longer wishes to pursue this action. Accordingly, it is recommended that this action be dismissed for lack of prosecution pursuant to Rule 41(b). The Clerk of Court shall immediately mail this report to the plaintiff at his address of record. If the plaintiff notifies the court within the time set forth for filing objections to this report that he wishes to continue with this case and complies with the court's prior order, the Clerk of Court is directed to vacate this report and return this case to the undersigned for further handling. If, however, the plaintiff does not file objections, the Clerk of Court shall forward this report to the district court for disposition.
IT IS SO RECOMMENDED.
The attention of the parties 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 250 East North Street, Suite 2300 Greenville, South Carolina 29601
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).