Opinion
Civil Action No. 4:05-02422-HFF-TER.
November 28, 2005
REPORT AND RECOMMENDATION
I. PROCEDURAL BACKGROUND
The pro se plaintiff, Ernest Johnson, Sr., ("plaintiff/Johnson"), filed this action under 42 U.S.C. § 1983 on August 25, 2005. In the complaint filed in this case, plaintiff claims that he was subjected to "false arrest, false imprisonment, malicious prosecution, civil conspiracy, intentional wrong, intentional infliction, malicious act, malicious injury, abuse of process" and "negligence, negligent inaction . . . intention[al] tort" at the hands of an officer with the Richland County Sheriff's office in connection with a bank fraud case. As a result, plaintiff alleges that his constitutional rights in the investigation of this criminal matter and ultimate arrest were violated.
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)(d), DSC. Because this is a dispositive motion, the report and recommendation is entered for review by the district judge.
Defendant David Goff filed a motion to dismiss for failure to prosecute on November 3, 2005, along with a supporting memorandum. (Doc. # 12). Defendant Goff asserts that plaintiff has violated the court's order of September 9, 2005, to keep the Clerk of Court and opposing counsel notified as to any address changes. Defendant Goff asserts that plaintiff has been released from the Newberry County Detention Center and has not provided the Clerk of Court nor defendant's counsel with notice of his change of address. Defendant Goff contends that his counsel attempted to serve its Local Rule 26.01 Answers to Interrogatories on plaintiff at the address listed on the Summons and it was returned on the basis that plaintiff "was no longer here." Defendant Goff asserts that the Fourth Circuit Court of Appeals has previously affirmed the dismissal of lawsuits where the pro se plaintiff failed to comply with a court order requiring the litigant to keep the court informed of any change of address. Ryidu-X v. Maryland Division of Correction, 30 Fed. Appx. 193 (4th Cir. 2002).
Because the plaintiff is proceeding pro se, he was advised on or about November 4, 2005, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th. Cir. 1975), that a failure to respond to the defendant's motion to dismiss could result in dismissal of his complaint. The envelope containing the Roseboro Order was returned to the Clerk of Court's office through the United States Postal Service marked "return to sender-inmate no longer here." (Doc. #14). No response has been filed by plaintiff to defendant's motion for summary judgment and plaintiff has not informed the court of a change of address.
II. RULE 41(B) DISMISSAL
A complaint may be dismissed pursuant to Rule 41 (b) of the Federal Rules of Civil Procedure for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989), cert. denied 493 U.S. 1084 (1990) and Chandler Leasing Corp. v. Lopez, 669 F.2d 919 (4th Cir. 1982). In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:
(1) the degree of plaintiff's responsibility in failing to respond;
(2) the amount of prejudice to the defendant;
(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 (4th Cir. 1978).
In the present case, the plaintiff is proceeding pro se so he is entirely responsible for his actions. It is solely through plaintiff's neglect, and not that of an attorney, that no responses have been filed. Plaintiff has not responded to defendant's motion to dismiss or the court's order requiring him to respond. In fact, plaintiff has not filed any documents with the court since the filing of his complaint on August 25, 2005. As previously stated, the Roseboro Order was returned by U.S. Mail to the Clerk of Court marked "Return to Sender, Inmate no longer here." (Doc. #14). The undersigned concludes the plaintiff has abandoned his lawsuit. No other reasonable sanctions are available. Accordingly, it is recommended that this action be dismissed pursuant to Fed.R.Civ.Proc. 41(b).
III. CONCLUSION
As set out above, a review of the record indicates that the plaintiff's complaint should be dismissed for failure to prosecute. It is, therefore,
RECOMMENDED that defendant's motion to dismiss for failure to prosecute (Doc. #12) be GRANTED and plaintiff's complaint be dismissed. The parties' attention is directed to the important information on the attached notice.
Notice of Right to File Objections to Magistrate Judge's "Report and Recommendation" The Serious Consequences of a Failure to Do So
The parties are hereby notified that any objections to the attached Report and Recommendation (or Order and Recommendation) must be filed within ten (10) days of the date of service. 28 U.S.C. § 636 and Fed.R.Civ.P. 72(b). The time calculation of this ten-day period excludes weekends and holidays and provides for an additional three days for filing by mail. Fed.R.Civ.P. 6. A magistrate judge makes only a recommendation, and the authority to make a final determination in this case rests with the United States District Judge. See Mathews v. Weber, 423 U.S. 261, 270-271 (1976); and Estrada v. Witkowski, 816 F. Supp. 408, 410, 1993 U.S.Dist. LEXIS® 3411 (D.S.C. 1993).During the ten-day period for filing objections, but not thereafter, a party must file with the Clerk of Court specific, written objections to the Report and Recommendation, if he or she wishes the United States District Judge to consider any objections. Any written objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. See Keeler v. Pea, 782 F. Supp. 42, 43-44, 1992 U.S.Dist. LEXIS® 8250 (D.S.C. 1992); and Oliverson v. West Valley City, 875 F. Supp. 1465, 1467, 1995 U.S.Dist. LEXIS® 776 (D.Utah 1995). Failure to file written objections shall constitute a waiver of a party's right to further judicial review, including appellate review, if the recommendation is accepted by the United States District Judge. See United States v. Schronce, 727 F.2d 91, 94 n. 4 (4th Cir.), cert. denied, Schronce v. United States, 467 U.S. 1208 (1984); and Wright v. Collins, 766 F.2d 841, 845-847 nn. 1-3 (4th Cir. 1985). Moreover, if a party files specific objections to a portion of a magistrate judge's Report and Recommendation, but does not file specific objections to other portions of the Report and Recommendation, that party waives appellate review of the portions of the magistrate judge's Report and Recommendation to which he or she did not object. In other words, a party's failure to object to one issue in a magistrate judge's Report and Recommendation precludes that party from subsequently raising that issue on appeal, even if objections are filed on other issues. Howard v. Secretary of HHS, 932 F.2d 505, 508-509, 1991 U.S.App. LEXIS® 8487 (6th Cir. 1991). See also Praylow v. Martin, 761 F.2d 179, 180 n. 1 (4th Cir.) (party precluded from raising on appeal factual issue to which it did not object in the district court), cert. denied, 474 U.S. 1009 (1985). InHoward, supra, the Court stated that general, non-specific objections are not sufficient:
A general objection to the entirety of the [magistrate judge's] report has the same effects as would a failure to object. The district court's attention is not focused on any specific issues for review, thereby making the initial reference to the [magistrate judge] useless. * * * This duplication of time and effort wastes judicial resources rather than saving them, and runs contrary to the purposes of the Magistrates Act. * * * We would hardly countenance an appellant's brief simply objecting to the district court's determination without explaining the source of the error.Accord Lockert v. Faulkner, 843 F.2d 1015, 1017-1019 (7th Cir. 1988), where the Court held that the appellant, who proceeded pro se in the district court, was barred from raising issues on appeal that he did not specifically raise in his objections to the district court:
Just as a complaint stating only 'I complain' states no claim, an objection stating only 'I object' preserves no issue for review. * * * A district judge should not have to guess what arguments an objecting party depends on when reviewing a [magistrate judge's] report.See also Branch v. Martin, 886 F.2d 1043, 1046, 1989 U.S.App. LEXIS® 15,084 (8th Cir. 1989) ("no de novo review if objections are untimely or general"), which involved a pro se litigant; and Goney v. Clark, 749 F.2d 5, 7 n. 1 (3rd Cir. 1984) ("plaintiff's objections lacked the specificity to trigger de novo review"). This notice, hereby, apprises the plaintiff of the consequences of a failure to file specific, written objections. See Wright v. Collins, supra; and Small v. Secretary of HHS, 892 F.2d 15, 16, 1989 U.S.App. LEXIS® 19,302 (2nd Cir. 1989). Filing by mail pursuant to Fed.R.Civ.P. 5 may be accomplished by mailing objections addressed as follows:
Larry W. Propes, Clerk United States District Court Post Office Box 2317 Florence, South Carolina 29503