Opinion
8:23-cv-4801-SAL-BM
06-26-2024
Kenneth Rivera, Petitioner, v. Warden Kenneth Nelson, Respondent.
REPORT AND RECOMMENDATION
BRISTOW MARCHANT UNITED STATES MAGISTRATE JUDGE
Kenneth Rivera (“Petitioner”) is an inmate in the custody of the South Carolina Department of Corrections (“SCDC”). ECF No. 1 at 1. Proceeding pro se and in form pauperis, Petitioner brings this action seeking a petition for writ of habeas corpus under 28 U.S.C. § 2254. This matter was referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B), D.S.C. For the reasons explained below, the undersigned concludes that this action is subject to dismissal for failure to prosecute.
BACKGROUND
Petitioner commenced this action by filing a Petition on the standard form pursuant to 28 U.S.C. § 2254. ECF No. 1. On January 26, 2024, Respondent filed a return and memorandum and a motion for summary judgment. ECF Nos. 18; 19. Because Petitioner is proceeding pro se, the Court entered an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) (the “Roseboro Order”), advising him of the importance of the motion and of the need for him to file an adequate response by February 29, 2024. ECF No. 22. Petitioner was specifically advised that if he failed to respond adequately, Respondent's motion may be granted, thereby ending this case. Id. Notwithstanding the specific warning and instructions set forth in the Court's Roseboro Order, Petitioner failed to respond to Respondent's motion. After the response deadline, the Court entered an Order directing Petitioner to advise the Court whether he wished to continue with this case and to file a response to Respondent's motion by April 24, 2024. ECF No. 29. That Order advised Petitioner that if he failed to respond, this action would be recommended for dismissal with prejudice for failure to prosecute. Id. However, Petitioner has not filed a response.
DISCUSSION
As noted, by Order dated April 10, 2024, Petitioner was notified that this action was subject to dismissal with prejudice for failure to prosecute. Id. In that Order, Petitioner was directed to file a response to Respondent's motion for summary judgment by April 24, 2024. Id. at 2. The Court's Order was mailed to Petitioner at the address provided in his notice of change of address. ECF Nos. 13; 30. Neither the Roseboro Order nor the April 10 Order were returned to the Court as undeliverable, and Petitioner is presumed to have received the Court's Orders along with Respondent's motion for summary judgment. However, Petitioner did not respond to the Court's Orders and has not filed a response to Respondent's motion.
Therefore, this action is subject to dismissal because Petitioner has failed to prosecute his claims. “The Court has inherent power to manage its docket in the interests of justice.” Luberda v. Purdue Frederick Corp., No. 4:13-cv-00897-RBH, 2013 WL 12157548, at *1 (D.S.C. May 31, 2013). It also has the authority expressly recognized in Rule 41(b) to dismiss actions for failure to prosecute. Fed.R.Civ.P. 41(b) (authorizing a district court to dismiss an action if a plaintiff fails to comply with an order of the court); see also Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (noting Rule 41“recognize[s] 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”). “The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962).
Petitioner did not file a response to Respondent's motion for summary judgment pursuant to this Court's Orders, and the time for response has lapsed. Petitioner has failed to prosecute this case and has failed to comply with multiple Orders of this Court. As such, it appears to the Court that he does not oppose Respondent's motion for summary judgment and wishes to abandon this action. See Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978); Fed.R.Civ.P. 41(b). Accordingly, the case should be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
RECOMMENDATION
Therefore, IT IS RECOMMENDED that this action be dismissed pursuant to Rule 41(b) for failure to prosecute.