Opinion
Civil Action 8:20-cv-2807-BHH-KFM
03-31-2022
Jeaset Cristal Ibarr, individually and as parent and guardian of MYG and ARG, minor children under the age of 18, Plaintiff, v. City of Greenwood, Officer J. Maynard, Officer Cardarelli, Officer Orgega, Officer Ray Pope, Officer S. Lukas, Officer Baker, Officer Craft, Officer S. Nichols, and Officer Mitchell McAlister, Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
This matter is before the court on the defendants' motion for summary judgment (doc. 49). 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 42 U.S.C. § 1983.
At the time of the filing of the plaintiff's complaint in state court, she was represented by counsel. The plaintiff brought this case in both her individual capacity and “as parent and guardian of MYG and ARG, minor children under the age of 18” (doc. 1-1 at 1). The complaint alleged claims for assault and battery, negligent hiring/ supervision/ training and retention, and excessive force on behalf of the plaintiff and her children (id. at 1-7). The case was removed by the sole defendant at that time, the City of Greenwood, on July 31, 2021, based on federal question jurisdiction (doc. 1 at 1). The plaintiff filed an amended complaint on December 4, 2020, adding defendants (doc. 23). On September 22, 2021, the plaintiff's counsel, Christopher Lance Sheek, was suspended from the practice of law for one year by the Supreme Court of South Carolina. In the Matter of Christopher Lance Sheek, 862 S.E.2d 903, 906 (S.C. 2021). On December 7, 2021, the undersigned entered an order giving the plaintiff until January 7, 2022, to retain counsel on behalf of her minor children (doc. 45). The undersigned noted that while an individual unquestionably has the right to litigate his or her own claims in federal court, 28 U.S.C. § 1654, the Court of Appeals for the Fourth Circuit has specifically held “that non-attorney parents generally may not litigate the claims of their minor children in federal court.” Myers v. Loudoun Cty. Pub. Schs., 418 F.3d 395, 401 (4th Cir. 2005) (citations omitted). No attorney entered an appearance on behalf of the plaintiff or her children.
On January 21, 2022, the defendants filed a motion for summary judgment (doc. 49). On January 24, 2022, by order of this court pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the summary judgment and dismissal procedure and the possible consequences if she failed to respond adequately (doc. 51). Her response to the motion for summary judgment was due by February 24, 2022. The plaintiff did not file a response. The undersigned filed a second order on March 3, 2022, giving the plaintiff through March 24, 2022, to file a response to the motion for summary judgment (doc. 54). The plaintiff was specifically advised that if she failed to respond, this action would be dismissed for failure to prosecute. The plaintiff did not respond.
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 not represented by counsel, and she is thus entirely responsible for her actions. It is solely through the plaintiff's neglect, and not that of an attorney, that no response has been filed. Meanwhile, the defendants are left to wonder when the action against them will be resolved. The plaintiff has not responded to the defendants' motion or the court's orders requiring her to respond. 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. If the plaintiff notifies the court within the time set forth for filing objections to this report that she wishes to continue with this case and complies with the court's prior orders, 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 or a response to the motion for summary judgment, the Clerk of Court shall forward this report to the district court for disposition. Should the district court adopt this recommendation, the defendants' motion for summary judgment (doc. 49) will be rendered moot.
IT IS SO RECOMMENDED.
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).