Opinion
Civil Action 9:21-cv-00240-RMG-MHC
12-16-2021
Melvin Durant, Plaintiff, v. Nurse Phillies and Dr. Phillips, Defendants.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY UNITED STATES MAGISTRATE JUDGE
Plaintiff, proceeding pro se and in forma pauperis, brought this action seeking relief pursuant to Title 42, United States Code, Section 1983. On March 9, 2021, the Court issued an Order authorizing service of process, and summonses were issued as to Defendants Nurse Phillies and Dr. Phillips. ECF Nos. 17 & 18. Although the summons for Dr. Phillips was returned executed on May 3, 2021, ECF No. 23, the summons for Nurse Phillies was returned unexecuted that same day, ECF No. 22. Dr. Phillips filed a Motion for Summary Judgment on August 29, 2021. ECF No. 29.
Failure to Serve Defendant Nurse Phillies
On May 3, 2021, the Summons for Defendant Nurse Phillies was returned unexecuted. The return indicates that the United States Marshal has been unable to locate Nurse Phillies and notes that the Office of General Counsel for the South Carolina Department of Corrections cannot accept service for Nurse Phillies. ECF No. 22.
Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, “[i]f a defendant is not served within 90 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant . . . [b]ut if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Fed.R.Civ.P. 4(m); see Attkisson v. Holder, 925 F.3d 606, 627 (4th Cir. 2019), as amended (June 10, 2019) (“Rule 4(m) requires the dismissal of defendants who remain unserved ninety days after the filing of a complaint unless ‘the plaintiff shows good cause.'”).
On May 5, 2021, the Court issued an Order advising Plaintiff that he is responsible for providing information sufficient to effect service on Nurse Phillies and that Nurse Phillies may be dismissed as a party if not served with process. ECF No. 24. That Order and a blank Form USM-285 were mailed to Plaintiff on May 5, 2021. ECF No. 25. However, Plaintiff has not responded to that Order or provided any additional information pertaining to Nurse Phillies for purposes of service of process.
Because Plaintiff has not made proper service on Defendant Nurse Phillies, has not provided any additional service information, and has not shown good cause for his failure to serve Defendant Nurse Phillies, Nurse Phillies is subject to dismissal as a party Defendant. See Fed.R.Civ.P. 4(m); Attkisson, 925 F.3d at 627.
Failure to Respond to Motion for Summary Judgment
On August 12, 2021, Defendant Dr. Phillips filed a Motion for Summary Judgment (“Motion”), seeking dismissal of this case. ECF No. 29. As Plaintiff is proceeding pro se, the Court entered a Roseboro Order on August 13, 2021, which was mailed to Plaintiff, advising him of the importance of a dispositive motion and of the need to file an adequate response. ECF Nos. 30 & 31. Plaintiff was specifically advised that if he failed to file a properly supported response, Defendant's Motion may be granted, thereby ending his case. On September 10, 2021, the Court extended Plaintiff's response deadline to November 10, 2021. ECF No. 34. Notwithstanding the specific warning and instructions as set forth in the Court's Roseboro Order, Plaintiff has failed to respond to the Motion.
RECOMMENDATION
Based on the foregoing, the undersigned RECOMMENDS, pursuant to Rule 4(m), Fed. R. Civ. P., that this case be DISMISSED, without prejudice, as against Defendant Nurse Phillies.
Furthermore, with respect to the claims against Dr. Phillips, the undersigned finds that Plaintiff meets all of the criteria for dismissal under Chandler Leasing Corp. v. Lopez, 669 F.2d 919 (4th Cir. 1982). Accordingly, it is RECOMMENDED that this action be DISMISSED for lack of prosecution pursuant to Rule 41(b). See Fed.R.Civ.P. 41(b); Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978); see also Coker v. Int'l Paper Co., No. 08-1865, 2010 WL 1072643, at *2 (D.S.C. Mar. 18, 2010) (noting that a plaintiff can abandon claims by failing to address them in response to a dispositive motion); Jones v. Family Health Ctr., Inc., 323 F.Supp.2d 681, 690 (D.S.C. 2003) (noting that a claim not addressed in opposition memorandum had been abandoned).
Plaintiff is personally responsible for proceeding in a dilatory fashion; Defendants are suffering prejudice because of having to expend time and resources on a case in which Plaintiff is unresponsive; no sanctions other than dismissal appear to exist as the Plaintiff is indigent (and therefore not subject to monetary sanctions); and Plaintiff has otherwise failed to respond to Court filings despite a Court order requiring him to do so. Lopez, 669 F.2d at 920.
The Clerk shall mail this Report and Recommendation to Plaintiff at his last known address. If the Plaintiff notifies the Court within the time set forth for filing objections to this Report and Recommendation that he wants to continue with this case and provides a response to the Motion for Summary Judgment, the Clerk is directed to vacate this Report and Recommendation and return this file to the undersigned for further handling.
Plaintiff is herein specifically advised and placed on notice that failure to respond to this Report and Recommendation may result in this action being dismissed.
If, however, no objections are filed, the Clerk shall forward this Report and Recommendation to the District Judge for disposition. Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (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); 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).
It is so RECOMMENDED
The parties are referred to the Notice Page attached hereto.