Opinion
Civil Action 6:23-cv-6822-TMC-KFM
05-06-2024
Diego Rivarola, Petitioner, v. Warden FCI Edgefield, Respondent.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
The petitioner, a federal prisoner proceeding pro se, brought this action pursuant to 28 U.S.C. § 2241, challenging an administrative disciplinary action he received at Federal Correctional Institution Edgefield following his appeal through the administrative remedy process (doc. 1). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate judge is authorized to review posttrial petitions for relief and submit findings and recommendations to the district court.
On February 28, 2024, the respondent filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing the petitioner's claim is moot because the disciplinary action has been expunged and his good conduct time has been restored (doc. 12). On the same day, by order of this court pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the petitioner was advised of the procedures for motions to dismiss and for summary judgment and the possible consequences if he failed to respond adequately to the respondent's motion (doc. 13). The petitioner's response to the motion to dismiss was due by April 1, 2024. He did not file a response to the motion. As the petitioner is proceeding pro se, the undersigned filed a second order on April 8, 2024, giving the petitioner through April 29, 2024, to file his response to the motion to dismiss (doc. 16).
The petitioner was specifically advised that if he failed to respond, the undersigned would recommend that the district court dismiss this action for failure to prosecute. The petitioner 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:
Rule 12 of the Rules Governing Section 2254 Cases states: “The Federal Rules of Civil Procedure, to the extent they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.” See also Rule 1(b), Rules Governing Section 2254 Cases (providing that the Rules Governing Section 2254 Cases may be applied in habeas actions filed pursuant to 28 U.S.C. § 2241).
(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 effectiveness of sanctions less drastic sanctions than dismissal.Davis v. Williams, 588 F.2d 69, 70 (4th Cir.1978) (citing McCargo v. Hedrick, 545 F.2d 393, 396 (4h 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 petitioner is proceeding pro se, and thus he is entirely responsible for his actions. It is solely through the petitioner's neglect, and not that of an attorney, that no response to the respondent's motion has been filed. Meanwhile, the respondent is left to wonder when the action will be resolved. The petitioner has not responded to the respondent's motion to dismiss or the court's orders requiring him to respond. Accordingly, the undersigned concludes the petitioner no longer wishes to pursue this action. No other reasonable sanctions are available.
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 petitioner. If the petitioner notifies the court within the time set forth for filing objections to this report that he wishes to continue with this case and complies with this 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, no objections are filed, the Clerk of Court shall forward this report to the district court for disposition. Should the district court adopt this recommendation, the respondent's motion to dismiss (doc. 12) will be rendered moot.
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the following page.
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).