Opinion
C/A No.: 5:20-cv-04134-RMG-KDW
06-29-2021
Vincent Polite Brown, Plaintiff, v. South Carolina Department of Corrections, Shayada Jackson, James Liscomb, Danielle Gilmore, Marcus Thomas, and Esther Labrador, Defendants.
REPORT AND RECOMMENDATION
Plaintiff, proceeding pro se and in forma pauperis, brought this action alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. On February 12, 2021, all Defendants filed a Motion to Dismiss. ECF No. 27. As Plaintiff is proceeding pro se, the court entered an order on February 17, 2020, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the importance of such motions and of the need for him to file an adequate response. ECF No. 30. Plaintiff was specifically advised that if he failed to respond adequately by 31 days from receipt of the Roseboro Order, Defendants' Motion may be granted, thereby ending Plaintiff's case. Id. Notwithstanding the specific warning and instructions set forth in the court's Roseboro order Plaintiff failed to respond to Defendants' Motion to Dismiss.
Notably, Defendant Jackson filed a Motion to Dismiss on February 12, 2021, see ECF No. 22, and Plaintiff filed a Response on March 24, 2021, see ECF No. 32. However, the more recent Motion to Dismiss, ECF No. 27, was a collective Motion filed by all Defendants raising different arguments regarding why this action should be dismissed in its entirety. Therefore, the undersigned recommends dismissing this action based on Plaintiff's failure to prosecute and failure to comply with court orders regarding his whereabouts as discussed herein.
On May 28, 2021, the court ordered Plaintiff to advise the court whether he wished to continue with the case and to file a response to the Motion to Dismiss by June 25, 2021. ECF No. 42. Plaintiff filed no response. As such, it appears to the court that he does not oppose Defendants' Motion and wishes to abandon his action. See Fed. R. Civ. P. 41(b); Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978) (noting that a court deciding whether to dismiss a case under Fed. R. Civ. P. 41(b) must balance the policy of deciding cases on their merits against "sound judicial administration." In so doing, the court must weigh: 1) plaintiff's responsibility for failure to prosecute, 2) prejudice to defendant from delay, 3) history of delay, and 4) effectiveness of lesser sanctions.); see also Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989) (noting and applying Davis factors in dismissing case under Fed. R. Civ. P. 41(b)); Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982) (same).
Previously, Plaintiff was ordered to keep the court apprised of any change in his address. See ECF No. 10. However, the recent court notifications sent to Plaintiff's last known addresses were returned as undeliverable. See ECF Nos. 41; 44-47. Further, since the returned mail, Plaintiff has not notified the court of any change of address. Thus, Plaintiff has failed to comply with the court's order, and as a result, neither the court nor Defendants have any means of contacting him concerning his case.
Based upon the above, and taking into account the factors in Davis, Ballard, and Chandler, the undersigned recommends this action be dismissed with prejudice for failure to prosecute pursuant to Fed. R. Civ. P. 41(b).
IT IS SO RECOMMENDED. June 29, 2021
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge