Opinion
C/A No. 5:18-cv-00386-TMC-KDW
09-19-2018
Timothy L. Wright, Plaintiff, v. Director Bryan Stirling, Defendant.
REPORT AND RECOMMENDATION
Timothy L. Wright ("Plaintiff"), proceeding pro se and in forma pauperis, brought this action alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. Following initial review, the Complaint was served on Defendant Bryan Stirling. ECF No. 8. On April 6, 2018, Defendant filed a Motion to Dismiss for failure to state a claim on which relief may be granted. ECF No. 15. An Order 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 was filed on April 9, 2018. ECF No. 17. Plaintiff responded to the Motion to Dismiss on April 20, 2018, ECF No. 20, but the Motion was subsequently withdrawn on May 22, 2018, after Plaintiff filed an Amended Complaint. ECF Nos. 25, 38.
Following the amendment to the Complaint, Defendant filed another Motion to Dismiss on May 21, 2018. ECF No. 32. A second Order pursuant to Roseboro v. Garrison, 528 F.2d 309, was issued on May 22, 2018, again advising Plaintiff of the importance of such motions and of the need for him to file an adequate response. ECF No. 33. Plaintiff was specifically advised that if he failed to respond by June 22, 2018, Defendant's Motion may be granted, thereby ending Plaintiff's case against him. Id. Plaintiff did not file a response to the Motion to Dismiss by June 22, 2018. On July 12, 2018, the court ordered Plaintiff to advise the court whether he wished to continue with the case against Defendant Stirling. Plaintiff was ordered to file a response to the Motion to Dismiss by July 30, 2018. ECF No. 42. Plaintiff filed no response to the Motion to Dismiss; however, on July 23, 2018, he informed the court that he had changed his address and had not received the Motion to Dismiss. ECF No. 46. On July 30, 2018, the court provided Plaintiff with a copy of the Motion to Dismiss and directed issuance of a second Roseboro Order. Plaintiff was specifically reminded of his continuing obligation to respond to the Motion to Dismiss by August 30, 2018. ECF No. 47. Plaintiff did not respond to the Motion to Dismiss, but he moved to amend his Complaint on July 30, 2018. ECF No. 51. Following objections from Defendant, ECF No. 54, on August 27, 2018, Plaintiff's Motion to Amend was denied. Plaintiff was clearly informed that the court expected him to file response to the Motion to Dismiss by August 30, 2018. ECF No. 56. Plaintiff did not respond to the court's Order in any way and has not filed the required response.
In light of Plaintiff's failure to respond, it appears to the court that he does not oppose Defendant's Motion to Dismiss and wishes to abandon this action. Based on the foregoing, the undersigned recommends that Plaintiff's action against Defendant be dismissed with prejudice for failure to prosecute. 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).
Based upon the above, and taking into account the factors in Davis, Ballard, and Chandler, the undersigned recommends this action against Defendant Bryan Stirling be dismissed with prejudice for failure to prosecute pursuant to Fed. R. Civ. P. 41(b).
IT IS SO RECOMMENDED. September 19, 2018
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
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).