United States District Court, D. South Carolina, Florence Division
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III, Magistrate Judge.
Plaintiff, who is proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983, alleging that Defendants were deliberately indifferent to his serious medical needs in violation of his Eighth Amendment right to be free from cruel and unusual punishment. He also alleges state law claims of gross negligence and medical malpractice. Presently before the court is Defendants' Motion for Summary Judgment (Document # 38). Because he is proceeding pro se, Plaintiff was warned pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), that a failure to respond to Defendants' motion for summary judgment could result in the motion being granted, resulting in dismissal of his claims. Plaintiff has not filed a response. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), DSC. This report and recommendation is entered for review by the district judge.
II. RULE 41(b) DISMISSAL
"The Federal Rules of Civil Procedure recognize that courts must have the authority to control litigation before them, and this authority includes the power to order dismissal of an action for failure to comply with court orders. Fed.R.Civ.P. 41(b)." Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989). "Federal courts possess an inherent authority to dismiss cases with prejudice sua sponte." Gantt v. Maryland Division of Correction, 894 F.Supp. 226, 229 (D.Md. 1995) (citing Link v. Wabash R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); White v. Raymark Industs., Inc., 783 F.2d 1175 (4th Cir.1986); Zaczek v. Fauquier County, Va., 764 F.Supp. 1071, 1074 (E.D.Va.1991)).
The Fourth Circuit, in Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978), recognizing that dismissal with prejudice is a harsh sanction which should not be invoked lightly, set forth four considerations in determining whether Rule 41(b) dismissal is appropriate: (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 presence or absence of a drawn out history of deliberately proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic than dismissal. Id. at 70.
Subsequently, however, the Fourth Circuit noted that "the four factors... are not a rigid four-pronged test." Ballard, 882 F.2d at 95. "Here, we think the Magistrate's explicit warning that a recommendation of dismissal would result from failure to obey his order is a critical fact that distinguishes this case from those cited by appellant.... In view of the warning, the district court had little alternative to dismissal. Any other course would have placed the credibility of the court in doubt and invited abuse." Id. at 95-96.
In the present case, Plaintiff is proceeding pro se and, thus, is entirely responsible for his actions. It is solely through Plaintiff's neglect, and not that of an attorney, that no response has been filed to Defendants' motion, despite the warning that a failure to respond could result in dismissal of his claims. Plaintiff has not requested an extension of time to respond to the motion for summary judgment or otherwise addressed the court with respect to this motion. Because Plaintiff has failed to file a response to the motion for summary judgment, the undersigned concludes Plaintiff has abandoned his claims. No other reasonable sanctions short of dismissal are available. Accordingly, it is recommended that this case be dismissed pursuant to Fed.R.Civ.P. 41(b).
In the alternative, the undersigned will address the arguments raised in Defendants' motion for summary judgment.
III. MOTION FOR SUMMARY JUDGMENT
In this case, Plaintiff alleges that Defendant Dr. Jimmy Pacheco failed to provide him with the proper medication to treat his mental health condition, either prescribing too much medication or too little medication. Complaint pp. 3-4. He alleges that he experienced excruciating pain and suffering as a result of the improper dosage of medication. Complaint p. 4. He also alleges that Dr. Pacheco prescribed the improper medication in retaliation for a grievance Plaintiff filed against him. Complaint pp. 3-4. As to the remaining Defendants, all mental health counselors, Plaintiff alleges that they ignored his requests to see Dr. Pacheco about his medication. Complaint p. 4.
Dr. Pacheco is a part-time employee of SCDC and is also employed by the South Carolina Department of Mental Health. He is a physician licensed in the State of South Carolina and has been licensed since 1991. Dr. Pacheco specializes in the area of psychiatry and is board-certified in psychiatry. Dr. Pacheco stated he recalls the Plaintiff and has also had the opportunity to review Plaintiff's medical records. Pacheco Aff. ¶¶ 1-3.
Dr. Pacheco first saw the Plaintiff on April 6, 2013. When he saw the Plaintiff at that time, Plaintiff complained of problems with anxiety and decreased sleep and stated that his heart would start beating rapidly all of a sudden and he would also start sweating. Dr. Pacheco noted that Plaintiff was on several anticholinergic medications (i.e., Bentyl, Robaxin, and Cogentin), and suspected that these medications could be contributing to his issues. He was concerned that these medications were making Plaintiff anticholinergic which can lead to problems such as increased heart rate and sweating. Therefore, he discontinued Plaintiff's prescription for Cogentin. In addition, Dr. Pacheco switched Plaintiff from Buspar to ...