United States District Court, D. South Carolina, Greenville Division
REPORT AND RECOMMENDATION OF MAGISTRATE
F. McDONALD, Magistrate Judge.
petitioner brought this action pro se, seeking
relief pursuant to 28 U.S.C. Â§ 2241 (doc. 1). On March 23,
2016, the undersigned issued an order requiring the
petitioner to bring the case into proper form by submitting
an application to proceed in forma pauperis or pay
the filing fee and answering the court's special
interrogatories (doc. 5). The petitioner was advised that his
case may be subject to dismissal if he failed to comply with
the order ( id. ). Despite this explanation, the
petitioner failed to respond to the order.
on the foregoing, it appears the petitioner no longer wishes
to pursue this action. "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." Ballard v. Carlson,
882 F.2d 93, 95 (4th Cir. 1989) (citing Fed.R.Civ.P. 41(b)).
"Federal courts possess an inherent authority to dismiss
cases with prejudice sua sponte. " Gantt v.
Md. Div. of Corr., 894 F.Supp. 226, 229 (D. Md. 1995)
(citing Link v. Wabash R. Co., 370 U.S. 626 (1962);
White v. Raymark Indust., Inc., 783 F.2d 1175 (4th
Cir. 1986); Zaczek v. Fauquier Cnty., Va., 764
F.Supp. 1071, 1074 (E.D. Va.1991)).
Fourth Circuit, in Davis v. Williams, recognizing
that dismissal with prejudice is a harsh sanction that should
not be invoked lightly, set forth four factors for
determining whether Rule 41(b) dismissal is appropriate:
(1) the degree of personal responsibility on the part of the
(2) the amount of prejudice to the defendant caused by the
(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
588 F.2d 69, 70 (4th Cir. 1978) (citing McCargo v.
Hedrick, 545 F.2d 393, 396 (4th Cir. 1976)).
Subsequently, however, the Fourth Circuit noted that
"the four factors... are not a rigid four-pronged test,
" and whether to dismiss depends on the particular
circumstances of the case. Ballard, 882 F.2d at 95.
For example, in Ballard, the court reasoned that
"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.
the petitioner is proceeding pro se, he is
personally responsible for his failure to file a response.
The petitioner has had more than one month to comply with
this court's order. However, the petitioner has failed to
comply. Because the petitioner has already ignored court
orders and deadlines, sanctions less drastic than dismissal
would not be effective.
based upon the foregoing, the court recommends the case be
DISMISSED pursuant to Federal Rule of Civil Procedure 41(b).
of Right to File Objections to Report and Recommendation
parties are advised that they may file specific written
objections to this Report and Recommendation with the
District Judge. Objections must specifically identify the
portions of the Report and Recommendation to which objections
are made and the basis for such objections. "[I]n the
absence of a timely filed objection, a district court need
not conduct a de novo review, but instead must only satisfy
itself that there is no clear error on the face of the record
in order to accept the recommendation.'" Dia ...