Opinion
C. A. 1:24-11-MGL-PJG
02-28-2024
Sallie C. Wright, Plaintiff, v. United States of America, Defendant.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE
Plaintiff Sallie C. Wright, a self-represented litigant, filed this civil action in the Aiken County Court of Common Pleas. The Government removed this action pursuant to 28 U.S.C. § 1442(a)(1) (federal officer defendant). 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 January 10, 2024 the Government moved to dismiss this case for lack of subject matter jurisdiction under the Federal Tort Claims Act (for failure to exhaust) and sovereign immunity as to any claim under the Energy Employees Occupational Illness Compensation Program Act. (ECF No. 6.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the Government's motion. (ECF No. 7.) In the order, Plaintiff was warned that failure to adequately respond to the motion may result in the court granting the Government's motion, which would end Plaintiff's case. Also, on January 17, 2024, the court issued an order directing Plaintiff to submit answers to the court's interrogatories pursuant to Local Civil Rule 26.01 (D.S.C.). Plaintiff was warned that failure to comply with the order may result in dismissal of this case. (ECF No. 9.) That same day, the Government filed a motion to substitute a party. (EF No. 11.) Plaintiff has not responded to the Government's motions or the court's orders, and the deadlines to do so have passed. Plaintiff sent a letter to the court requesting a hearing date, (ECF No. 16), but the letter is completely unresponsive to the Government's motions or the court's orders.
Consequently, this matter should be summarily dismissed for Plaintiff's failure to comply with a court order and 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. Moreover, “[t]he 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 Federal Rule of Civil Procedure 41(b)).
Here, Plaintiff's failure to comply with the court's orders or respond to the Government's motion justifies dismissal of this action. See Ballard, 882 F.2d at 96 (finding the Magistrate Judge's explicit warning that a recommendation of dismissal would result from the plaintiff's failure to obey his order gave the district court little alternative to dismissal because any other course would have placed the credibility of the court in doubt and invited abuse); see also Lutfi v. Training Etc, Inc., 787 Fed.Appx. 190, 191 (4th Cir. 2019) (“Where a litigant has ignored an express warning that noncompliance with a court order will result in dismissal, the district court should dismiss the case.”). Also, Plaintiff's failure to respond to the Government's motion to dismiss signals her unwillingness to contest the arguments made by the Government. Cf. Ferdinand-Davenport v. Children's Guild, 742 F.Supp.2d 772, 783 (D. Md. 2010) (stating that a party who fails to address arguments in opposition to a motion to dismiss abandons their claim). Thus, Plaintiff has failed to prosecute this case and failed to comply with orders of the court.
For the foregoing reasons, it is recommended that this action be summarily dismissed without prejudice. In light of this recommendation, the Government's pending motion to dismiss should be terminated as moot.
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).