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Richbert v. Warden, Ridgeland Correctional Institution

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

January 7, 2015

LAZARUS DEMETRIOUS RICHBERT[1], Petitioner,
v.
WARDEN, RIDGELAND CORRECTIONAL INSTITUTION, Respondent.

REPORT AND RECOMMENDATION

THOMAS E. ROGERS, III, Magistrate Judge.

Petitioner is currently incarcerated at Ridgeland Correctional Institution. Petitioner appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254[2] on August 11, 2014. Respondent filed a motion for summary judgment on November 24, 2014, along with a return, supporting memorandum, and exhibits. (Docs. #14 and #15). The undersigned issued an order filed November 25, 2014, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. (Doc. #16). Petitioner 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 (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 Petitioner is proceeding pro se so he is entirely responsible for his actions. It is solely through Petitioner's neglect, and not that of an attorney, that no responses have been filed. Petitioner has not responded to Respondent's motion for summary judgment or the court's orders 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).

In the alternative, it is recommended that Respondent's motion for summary judgment be granted and this action be dismissed as barred by the statute of limitations for the reasons set forth below.

PROCEDURAL HISTORY

The procedural history as set forth by the Respondent in his memorandum has not been disputed by the Petitioner in his response. Therefore, the undersigned will set out the undisputed procedural history as set forth by the Respondent, in part.

Petitioner is currently incarcerated in Ridgeland Correctional Institution pursuant to an order of commitment from the Clerk of Court of Dorchester County. A Dorchester County Grand Jury indicted Petitioner in March 2011 for armed robbery. (Attachment 1). John M. Loy, Deputy Public Defender, represented Petitioner on the charge. On May 11, 2011, Petitioner pleaded guilty as charged. (Attachment 2). The Honorable Diane S. Goodstein heard and accepted the plea. Judge Goodstein sentenced Petitioner to the minimum sentence available under the statute, ten (10) years imprisonment. (Attachment 2, pp. 9 and 30; Attachment 3). See also S.C. Code §16-11-330(A) (setting punishment for commission of armed robbery: "must be imprisoned for a mandatory minimum term of not less than ten years or more than thirty years, no part of which may be suspended or probation granted."). Petitioner timely filed a notice of intent to appeal. (Attachment 4). On September 7, 2011, the South Carolina Court of Appeals dismissed the notice finding Petitioner "failed to show ...


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