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Brown v. McCall

United States District Court, D. South Carolina

May 20, 2014

Mark Brown, Jr., Petitioner,
v.
Warden McCall, Respondent.

REPORT AND RECOMMENDATION

PAIGE J. GOSSETT, Magistrate Judge.

The petitioner, Mark Brown, Jr., a self-represented state prisoner, brought this action seeking a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. On February 4, 2014, the respondent filed a motion for summary judgment. (ECF No. 24.) By order of this court filed February 5, 2014, pursuant to Roseboro v. Garrison , 528 F.2d 309 (4th Cir. 1975), the petitioner was advised of the dismissal and summary judgment procedures and the possible consequences if he failed to respond adequately. (ECF No. 25.)

The petitioner filed two motions requesting extensions of time in which to respond to the respondent's motion, which were granted by docket text orders. (ECF Nos. 30 & 34.) The courts' orders specifically warned the petitioner that if he failed to respond, this action would be recommended for dismissal with prejudice for failure to prosecute. See Davis v. Williams , 588 F.2d 69, 70 (4th Cir. 1978); Fed.R.Civ.P. 41(b). Despite his extensions of time and notwithstanding the specific warning and instructions set forth in the court's Roseboro order, the petitioner failed to respond to the motion. Therefore, the petitioner meets all of the criteria for dismissal under Chandler Leasing Corp.v. Lopez , 669 F.2d 919 (4th Cir. 1982).[1]

RECOMMENDATION

Accordingly, it is recommended that this action be dismissed with prejudice for lack of prosecution. See Davis , 588 F.2d at 70; Ballard v. Carlson , 882 F.2d 93, 95 (4th Cir. 1989) (stating that magistrate judge's prior explicit warning that a recommendation of dismissal would result from the petitioner failing to obey his order was proper grounds for the district court to dismiss the suit when the petitioner did not comply despite the warning), cert. denied sub nom, Ballard v. Volunteers of America , 493 U.S. 1084 (1990); Fed.R.Civ.P. 41(b). In light of the court's recommendation, the court further recommends that any pending motions (ECF No. 24) be terminated.


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