Opinion
Civil Action No. 9:20-316-MGL-MHC
01-11-2021
William Chappell, Plaintiff, v. United States Government, Warden B.M., Antonelli, Asst. Warden Modier, Asst. Warden Janson, Capt. Jones, Lt. K. Hardy, Lt. Yaniguez, Dr. Phvsch, Mrs. Truesdale, CSO D. Wilcox, CSO G. Hill, CSO John Doe, SCO A. Coles, CSO D. Dinkins, CSO Smith, CSO Y. Brunson, CSO Mr. Hardinson, CSO Mr. Moore, CSO Mr. Carroen, and CSO Mr. Ortiz, Defendants.
REPORT AND RECOMMENDATION
Plaintiff, proceeding pro se, brought this action seeking relief pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b), and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). ECF No. 1. On September 29, 2020, Defendants filed a Motion to Dismiss, seeking dismissal of this case. ECF No. 50. That same day, the Court entered an Order, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the importance of a dispositive motion and of the need for him to file an adequate response. ECF No. 51. Plaintiff was specifically advised that if he failed to file a properly supported response, Defendants' motion may be granted, thereby ending his case. Id. Plaintiff's Response to the Motion Dismiss was due on or before November 2, 2020.
Plaintiff filed a Motion to Appoint Counsel on October 27, 2020, ECF No. 53, which was denied by Order filed October 28, 2020. ECF No. 54. Plaintiff did not file a Response to the Motion to Dismiss. On November 10, 2020, the Court entered an Order granting Plaintiff an additional 14 days to respond to Defendants' Motion to Dismiss. ECF No. 56. Plaintiff was specifically warned again that if he failed to respond, this action would be recommended for dismissal for failure to prosecute. Id.
On December 8, 2020, Plaintiff filed a motion seeking additional time to file his response. ECF No. 58. That same day, the Court entered an Order granting Plaintiff an additional twenty days to submit his response to Defendants' Motion to Dismiss. ECF No. 59. In its Order, the Court specifically advised Plaintiff that no further extensions would be granted, absent extraordinary circumstances, and that if he failed to respond to the Motion to Dismiss on or before December 28, 2020, this action would be recommended for dismissal for failure to prosecute. Id.
Notwithstanding the specific warnings and instructions as set forth in the Court's Roseboro Order and the additional time granted by the Court, Plaintiff has failed to respond to the Motion to Dismiss or to contact the Court in any way since the Court's December 8, 2020 Order.
Based on the foregoing, the undersigned finds that Plaintiff meets all of the criteria for dismissal of his case under Chandler Leasing Corp. v. Lopez, 669 F.2d 919 (4th Cir. 1982). Accordingly, it is RECOMMENDED that this action be DISMISSED for lack of prosecution. See Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978); Fed. R. Civ. P. 41(b); see also Coker v. Int'l Paper Co., No. 08-1865, 2010 WL 1072643, at *2 (D.S.C. Mar. 18, 2010) (noting that plaintiff can abandon claims by failing to address them in response to a dispositive motion); Jones v. Family Health Ctr., Inc., 323 F. Supp. 2d 681, 690 (D.S.C. 2003) (noting that claim not addressed in opposition memorandum had been abandoned).
He is personally responsible for proceeding in a dilatory fashion; Defendants are suffering prejudice because of having to expend time and resources on a case in which Plaintiff is unresponsive; no sanctions other than dismissal appear to exist as the Plaintiff is indigent (and therefore not subject to monetary sanctions); and Plaintiff has otherwise failed to respond to Court filings despite Court orders requiring him to do so. Lopez, 669 F.2d at 920.
The Clerk shall mail this Report and Recommendation to Plaintiff at his last known address. If the Plaintiff notifies the Court within the time set forth for filing objections to this Report and Recommendation that he wishes to continue with this case and provides a response to the Motion to Dismiss, the Clerk is directed to vacate this Report and Recommendation and return this file to the undersigned for further handling.
If, however, no objections are filed, the Clerk shall forward this Report and Recommendation to the District Judge for disposition. Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989), cert. denied sub nom, Ballard v. Volunteers of America, 493 U.S. 1084 (1990) (Magistrate Judge's prior explicit warning that a recommendation of dismissal would result from plaintiff failing to obey his order was proper grounds for the district court to dismiss suit when plaintiff did not comply despite warning).
After a litigant has received one explicit warning as to the consequences of failing to timely comply with an order of a Magistrate Judge, and has failed to respond to that order, the district court may, under Fed. R. Civ. P. 41(b), dismiss the complaint based upon the litigant's failure to comply with that court order. See Simpson v. Welch, 900 F.2d 33, 35-36 (4th Cir. 1990); see also Ballard, 882 F.2d at 95-96 (holding that district court's dismissal following an explicit and reasonable warning was not an abuse of discretion).
It is so RECOMMENDED.
The parties are referred to the Notice Page attached hereto.
/s/_________
Molly H. Cherry
United States Magistrate Judge January 11, 2021
Charleston, South Carolina
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 835
Charleston, South Carolina 29402
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).