Opinion
Case No. 3:16-cv-03774
01-19-2017
SHANE STEPHEN HOLBROOK, Plaintiff, v. CABELL COUNTY PUBLIC DEFENDER'S OFFICE; and KIM CARICO, Defendants.
PROPOSED FINDINGS AND RECOMMENDATION
Pending before the Court is Plaintiff's pro se complaint filed pursuant to 42 U.S.C. § 1983. (ECF No. 2). This matter is assigned to the Honorable Robert C. Chambers, United States District Judge, and by Standing Order has been referred to the undersigned United States Magistrate Judge for the submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons that follow, the undersigned respectfully RECOMMENDS that the complaint be DISMISSED pursuant to Federal Rule of Civil Procedure 41(b) and L. R. Civ. P. 41.1., and that this action removed from the docket of the Court.
I. Relevant History
On April 20, 2016, Plaintiff filed the complaint herein and an Application to Proceed Without Prepayment of Fees and Costs. (ECF Nos. 1, 2). On April 21, 2016, the undersigned entered an Order instructing Plaintiff to cure certain fatal deficiencies in the pleading. (ECF No. 4). Plaintiff was given forty-five days to amend the complaint and was warned that a failure to do so might result in a recommendation of dismissal for failure to state a claim. (Id. at 4). Plaintiff was further advised of the "three strikes" rule and was given the option of dismissing the case voluntarily to avoid application of the rule. Plaintiff did not respond to the court's order or amend his complaint.
More than six months later, on November 8, 2016, the undersigned issued a show cause order, advising Plaintiff that this civil action would be dismissed for failure to prosecute and failure to comply with the previous order unless he could should good cause for retention of the case on the court's docket. Once again, Plaintiff failed to respond to the order. Given that more than sixty days have elapsed since entry of the show cause order, this matter is ripe for disposition.
II. Discussion
"The authority of a federal trial court to dismiss a plaintiff's action with prejudice because of his failure to prosecute cannot seriously be doubted." Link v. Wabash R. Co., 370 U.S. 626, 629, 82 S. Ct. 1386, 1388, 8 L. Ed. 2d 734 (1962). As the United States Supreme Court explained in Link, such a sanction is necessary to "prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts" Id. at 629-30. Federal Rule of Civil Procedure 41(b) codifies the district court's inherent power, providing that a complaint may be involuntarily dismissed "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order." Similarly, under this Court's Local Rule of Civil Procedure 41.1, when it appears that a plaintiff has no interest in further prosecution of a complaint:
Fed.R.Civ.P. 41(b) states, in relevant part, "If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it." L.R.Civ.P. 41.1, implemented by the United States District Court for the Southern District of West Virginia, states "When it appears in any pending civil action that the principal issues have been adjudicated or have become moot, or that the parties have shown no interest in further prosecution, the judicial officer may give notice to all counsel and unrepresented parties that the action will be dismissed 30 days after the date of the notice unless good cause for its retention on the docket is shown." --------
[T]he judicial officer may give notice to all counsel and unrepresented parties that the action will be dismissed 30 days after the date of the notice unless good cause for its retention on the docket is shown. In the absence of good cause shown within that period of time, the judicial officer may dismiss the action.The appropriateness of a dismissal that is not voluntarily sought by a plaintiff "depends on the particular circumstances of the case." Ballard v. Carlson, 882 F.2d. 93, 95 (4th Cir. 1989). When assessing whether to impose the sanction of dismissal, the court should consider four factors, including: (1) the degree of personal responsibility on the part of the plaintiff; (2) the amount of prejudice to the defendant caused by the delay in prosecution; (3) the presence or absence of a history of plaintiff deliberately proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic than dismissal. Davis v. Williams, 588 F.2d 69, 70 (4th Cir.1978). "A district court need not engage in a rigid application of this test, however, when a litigant has ignored an expressed warning that failure to comply with an order will result in the dismissal of his claim." Taylor v. Huffman, Case no. 95-6380, 1997 WL 407801, at *1 (4th Cir. 1997) (unpublished).
Having considered each of these factors in turn, the undersigned concludes that dismissal is warranted. A review of the docket demonstrates that Plaintiff received the orders notifying him of his obligation to amend the complaint and show cause to avoid dismissal; yet, he has not abided by either directive. Plaintiff likewise has made no effort to check on the status of his case, or to notify the court if he wishes to voluntarily dismiss the action. All of these failures add up to a case history of Plaintiff proceeding in a deliberately dilatory fashion. This civil action has been pending on the court's docket for nearly ten months without any action or contact by Plaintiff. Thus, Plaintiff is entirely responsible for the delay in prosecution. As a rule, a delay in prosecution causes some measure of prejudice to the defendants given that witnesses become unavailable and memories become stale with the passage of time. Furthermore, considering that Plaintiff has entirely disregarded the court's two prior orders, a sanction less severe than dismissal plainly will not be effective in this case. See Ballard, 882 F.2d at 95-96.
Accordingly, for the stated reasons, the undersigned respectfully PROPOSES that the presiding District Judge confirm and accept the foregoing findings and RECOMMENDS that the complaint be DISMISSED, and this matter be removed from the docket of the Court.
Plaintiff is notified that this "Proposed Findings and Recommendation" is hereby FILED, and a copy will be submitted to the Honorable Robert C. Chambers, United States District Judge. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Rules 6(d) and 72(b), Federal Rules of Civil Procedure, Plaintiff shall have fourteen days (filing of objections) and three days (if mailed) from the date of filing this "Proposed Findings and Recommendation" within which to file with the Clerk of this Court, specific written objections, identifying the portions of the "Proposed Findings and Recommendation" to which objection is made, and the basis of such objection. Extension of this time period may be granted by the presiding District Judge for good cause shown. Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); 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). Copies of such objections shall be provided to Judge Chambers and Magistrate Judge Eifert.
The Clerk is directed to file this "Proposed Findings and Recommendation" and to mail a copy of the same to Plaintiff.
DATED: January 19, 2017
/s/_________
Cheryl A. Eifert
United States Magistrate Judge