Opinion
C. A. 4:24-cv-1756-MGL-TER
10-31-2024
KENNETH ONEIL ROUSE, JR., PLAINTIFF, v. NATALIE BELL, DEFENDANT.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
The Plaintiff, proceeding pro se, brings this action pursuant to 42 U.S.C. 1983 . Plaintiff filed his complaint on April 9, 2024, alleging that Defendant Bell violated his constitutional rights and seeking monetary damages. (ECF No. 1).
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). Because this is a dispositive motion, the report and recommendation is entered for review by the District Judge.
Defendant VitalCore Health Strategies was dismissed with prejudice by order filed May 3, 2024. (ECF No. 15).
On October 16, 2024, this court issued an order giving Plaintiff ten days from the date of the order to inform the court of the status of the case. The order was returned to the Clerk of Court's office via United States Postal Service on October 30, 2024, marked “Return to Sender.” (ECF No. 22). Plaintiff has not provided the court with an updated address.
RULE 41(B) DISMISSAL
II. RULE 41(B)
“The Federal Rules of Civil Procedure recognize 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. Fed.R.Civ.P. 41(b).” Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989). The Fourth Circuit, in Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978), recognizing that dismissal with prejudice is a harsh sanction which should not be invoked lightly, set forth four considerations in determining whether Rule 41(b) dismissal is appropriate: (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 presence or absence of a drawn out history of deliberately proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic than dismissal. Id. at 70.
In the present case, Plaintiff is proceeding pro se and, thus, is entirely responsible for his actions. It is solely through Plaintiff's neglect, and not that of an attorney, that Plaintiff has failed to respond to the court's order, has not updated his address with the court and, therefore, has failed to prosecute this case. Accordingly, the undersigned concludes that Plaintiff has abandoned his claims against Defendant Bell. It appears there are no less drastic sanctions available. For that reason, dismissal of this case is appropriate under Rule 41(b).
CONCLUSION
Based on the above reasoning, it is RECOMMENDED that this action be dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
The parties' attention is directed to the important information on the attached notice.
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 Post Office Box 2317 Florence, South Carolina 29503
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).