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Christenbury v. Superintendent Leath Correctional Institution

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

March 31, 2015

Myra Christenbury, Petitioner,
v.
Superintendent Leath Correctional Institution, Respondent.

REPORT OF MAGISTRATE JUDGE

KEVIN F. McDONALD, Magistrate Judge.

The petitioner, a state prisoner proceeding pro se, brought this action seeking habeas corpus relief pursuant to Title 28, United States Code, Section 2254. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.), this magistrate judge is authorized to review posttrial petitions for relief and submit findings and recommendations to the district court.

On November 21, 2014, the respondent filed a motion for summary judgment. By order of this court filed the same day, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the petitioner was advised of the summary judgment procedure and the possible consequences if she failed to respond adequately. The petitioner did not file a response.

As the petitioner is proceeding pro se, the court filed an order on January 7, 2015, giving the petitioner through January 28, 2015, to file her response to the motion for summary judgment. The petitioner was specifically advised that if she failed to respond, this action would be dismissed for failure to prosecute. The petitioner did not file a timely response. However, on February 5, 2015, she requested an extension of time to file her response. On February 6, 2015, the petitioner was granted an extension of time to file her response through March 9, 2015. The petitioner has not responded.

A complaint may be dismissed pursuant to Federal Rule of Civil Procedure 41(b)[1] for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989). In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:

(1) the degree of personal responsibility on the part of the plaintiff;
(2) the amount of prejudice to the defendant caused by the delay;
(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, 70 (4th Cir.1978).

In the present case, the petitioner is proceeding pro se, and she is thus entirely responsible for her actions. It is solely through the petitioner's neglect, and not that of an attorney, that no response has been filed. Meanwhile, the respondent is left to wonder when the action will be resolved. The petitioner has not responded to the respondent's motion for summary judgment or the court's orders requiring her to respond. Accordingly, the undersigned concludes the petitioner has abandoned her lawsuit. No other reasonable sanctions are available.

Based on the foregoing, it appears the petitioner no longer wishes to pursue this action. Accordingly, it is recommended that this action be dismissed for lack of prosecution pursuant to Federal Rule of Civil Procedure 41(b).


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