Opinion
Civil Action No.: 4:17-cv-0367-HMH-TER
01-16-2018
MATTHEW J. WARD, Plaintiff, v. JAMES BLACKWELL, Asst. Warden; TAMARA RAVENELL, Classification; and JACEK KICINSKI, Officer; Defendants.
REPORT AND RECOMMENDATION
Plaintiff, who is proceeding pro se, appears to allege that Defendants violated his constitutional rights by being deliberately indifferent to his safety. 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. This report and recommendation is entered for review by the district judge.
Presently before the court is Defendants' Motion for Summary Judgment (ECF No. 58). Because Plaintiff is proceeding pro se, he was advised pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendants' motion could result in the motion being granted and his case being dismissed. Plaintiff did not file a response to the motion. Thus, the undersigned entered a second order (ECF No. 70) directing Plaintiff to file a response to Defendants' motion within ten days of the date of the order. The order further warned Plaintiff that failure to do so would result in a recommendation that the case be dismissed for failure to prosecute pursuant to Rule 41(b), Fed.R.Civ.P. Plaintiff did not file a response.
"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). "Federal courts possess an inherent authority to dismiss cases with prejudice sua sponte." Gantt v. Maryland Division of Correction, 894 F.Supp. 226, 229 (D.Md. 1995) (citing Link v. Wabash R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); White v. Raymark Industs., Inc., 783 F.2d 1175 (4th Cir.1986); Zaczek v. Fauquier County, Va., 764 F.Supp. 1071, 1074 (E.D.Va.1991)).
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.
Subsequently, however, the Fourth Circuit noted that "the four factors ... are not a rigid four-pronged test." Ballard, 882 F.2d at 95. "Here, we think the Magistrate's explicit warning that a recommendation of dismissal would result from failure to obey his order is a critical fact that distinguishes this case from those cited by appellant. . . . In view of the warning, the district court had little alternative to dismissal. Any other course would have placed the credibility of the court in doubt and invited abuse." Id. at 95-96.
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 prosecute this case. He has failed to respond to the present motion for summary judgment despite two warnings that his case may be dismissed if he failed to respond and an extension of time within which to respond. In addition, the court previously entered an Order (ECF No. 67) with respect to Plaintiff's motion to compel directing him to provide additional information within seven days. Plaintiff failed to respond to that order as well. As such, it appears Plaintiff has abandoned his case. Therefore, dismissal under Rule 41(b) is appropriate.
III. CONCLUSION
For the reasons discussed above, it is recommended that this case be dismissed pursuant to Fed.R.Civ.P. 41(b).
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge January 16, 2018
Florence, South Carolina