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Miller v. Schwartz

United States District Court, D. South Carolina, Florence Division

December 15, 2014

Bobby Eugene Miller, Plaintiff,
v.
Chief Michael Schwartz, Defendant

Bobby Eugene Miller, Plaintiff, Pro Se, Georgetown, SC.

REPORT AND RECOMMENDATION

Thomas E. Rogers, III, United States Magistrate Judge.

PROCEDURAL BACKGROUND

The Plaintiff, Bobby Eugene Miller (Plaintiff"), filed this action under 42 U.S.C. § 1983[1] on March 21, 2014, alleging violations of his constitutional rights. Defendant filed a Motion for Summary Judgment on November 5, 2014, along with a memorandum and exhibits in support of said motion. (Document #38). Because Plaintiff is proceeding pro se, he was advised on or about November 6, 2013, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), that a failure to respond to the Defendants' Motion for Summary Judgment could result in the dismissal of his complaint. Plaintiff failed to file a response.

RULE 41(B) DISMISSAL

A complaint may be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989), cert. denied, 493 U.S. 1084, 110 S.Ct. 1145, 107 L.Ed.2d 1049 (1990), and Chandler Leasing Corp. v. Lopez, 669 F.2d 919 (4th Cir. 1982). In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:

(1) the degree of plaintiff's responsibility in failing to respond;
(2) the amount of prejudice to the defendant;
(3) the history of the plaintiff in proceeding in a dilatory manner; and,
(4) the existence of less drastic sanctions other than dismissal.

Davis v. Williams, 588 F.2d 69 (4th Cir. 1978).

In the present case, the Plaintiff is proceeding pro se so he is entirely responsible for his actions. It is solely through Plaintiff's neglect, and not that of an attorney, that no responses have been filed to this motion for summary judgment. Plaintiff has not responded to Defendant's motion for summary judgment or the court's order requiring him to respond. No other reasonable sanctions are available. Accordingly, it is recommended that this action be dismissed pursuant to Fed. R. Civ. Proc. 41(b).

CONCLUSION

Based on the above reasoning, it is RECOMMENDED that this action be dismissed for failure to prosecute pursuant to Fed. R. Civ. Proc. 41(b) with prejudice.

Respectfully submitted,


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