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Tessner v. Warden of Kirkland Correctional Institution

United States District Court, D. South Carolina

August 13, 2014

Eric Dale Tessner, Petitioner,
v.
Warden of Kirkland Correctional Institution, Respondent.

REPORT AND RECOMMENDATION

BRISTOW MARCHANT, Magistrate Judge.

The pro se Petitioner brought this action seeking relief pursuant to Title 28, United States Code, Section 2254. On July 7, 2014, the Respondent filed a motion for summary judgment. As the Petitioner is proceeding pro se, a Roseboro Order was entered by the Court on July 8, 2014, advising Petitioner of the importance of a dispositive motion and of the need for him to file an adequate response. Petitioner was specifically advised that if he failed to file a properly supported response, the Respondent's motion may be granted, thereby ending his case. However, notwithstanding the specific warning and instructions as set forth in the Court's Roseboro order, the Petitioner has failed to respond to the motion, or to contact the Court in any way.

The undersigned notes that this is not the first time Petitioner has failed to respond to motions and other court filings, notwithstanding having been granted extensions of time to do so. See Court Docket Nos. 18, 22, 24. Based on the foregoing, the undersigned finds that Petitioner meets all of the criteria for dismissal under Chandler Leasing Corp. V. Lopez, 669 F.2d 929 (4th Cir. 1982).[1] Accordingly, it is recommended that this action be dismissed with prejudice for lack of prosecution. See Davis v. Williams , 588 F.2d 69, 70 (4th Cir. 1978); Rule 41(b), Fed.R.Civ.P.; 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].[2]


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