Opinion
Civil Action 4:20-cv-2903-JMC-TER
03-09-2022
PARIS LAQUISHA FUNDERBURK, Plaintiff, v. DEPUTY JOHNSON, DEPUTY N. VINSON, DEPUTY WILLIAM BALLEW, DEPUTY JOSH GILLESPIE, MAJOR FREEMAN, CAPTAIN HAYES, CAPTAIN CODY, LIEUTENANT WILSON, LIEUTENANT DULCOS, LIEUTENANT CUNNINGHAM, and LIEUTENANT HOLLIFIELD, Defendant.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
I. INTRODUCTION
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, alleging unlawful conditions of confinement while she was confined at the Spartanburg County Detention Facility (SCDF). The only Defendants served in this action are Defendants Deputy Johnson, Deputy William Ballew, and Deputy Josh Gillespie. Presently before the Court is Defendants' Motion for Summary Judgment (ECF No. 59). Because Plaintiff is proceeding pro se, she was advised pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendants' motion could result in the motion being granted and her claims against the remaining Defendants dismissed. Plaintiff requested and was granted an extension of time to file a response, but has failed to do so. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. 636(b)(1)(A) and (B) and Local Rule 73.02 (B)(2)(e), DSC. This report and recommendation is entered for review by the district judge.
II. RULE 41(B) DISMISSAL
“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. Fed.R.Civ.P. 41(b).” Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989).
The Fourth Circuit, in Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978), recognizing that dismissal with prejudice is a harsh sanction which should not be invoked lightly, set forth four considerations in 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. Id. at 70.
Subsequently, however, the Fourth Circuit noted that “the four factors ... are not a rigid four-pronged test.” Ballard, 882 F.2d at 95. “Here, we think 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.
In the present case, Plaintiff is proceeding pro se and, thus, is entirely responsible for her actions. She was advised that a failure to respond to Defendants' motion could result in dismissal of her case. Nevertheless, Plaintiff failed to respond to the motion after requesting an extension to do so. It is solely through Plaintiff's neglect, and not that of an attorney, that Plaintiff has failed to prosecute this case. Defendants cannot come to a resolution of this matter if Plaintiff fails to prosecute it. Accordingly, the undersigned concludes that Plaintiff has abandoned her claims against Defendants. For that reason, dismissal of this case is appropriate under Rule 41(b).
III. CONCLUSION
For the reasons discussed above, it is recommended that this case be dismissed for failure to prosecute pursuant to Fed.R.Civ.P. 41(b).
The parties are directed to the important information on the attached page.