United States District Court, D. South Carolina, Florence Division
REPORT AND RECOMMENDATION
E. ROGERS, III, Magistrate Judge.
a prisoner incarcerated within the South Carolina Department
of Corrections (SCDC) and currently housed at Perry
Correctional Institution (PCI), is proceeding pro se and
brings this action pursuant to 42 U.S.C. Â§ 1983, alleging
numerous constitutional violations as a result of
discrimination and retaliation for filing grievances against
Defendants. Presently before the court is Defendant
Chockalingham's Motion to Dismiss, or in the alternative,
for Summary Judgment (Document # 90) and the remaining
Defendants' Motion for Summary Judgment (Document # 94).
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'
motions for summary judgment could result in the motions
being granted, resulting in dismissal of his
claims. Plaintiff has not filed a response to
either motion. On May 6, 2015, the undersigned entered an
order giving Plaintiff an additional ten days to respond to
the motions and warned Plaintiff that if he failed to
respond, "this action will be recommended for dismissal
with prejudice for failure to prosecute." Order
(Document # 100). Plaintiff still failed to respond. All
pretrial proceedings in this case were referred to the
undersigned pursuant to the provisions of 28 U.S.C. Â§
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
RULE 41(b) DISMISSAL
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)).
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.
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.
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' motions, despite
at least two warnings that a failure to respond could result
in dismissal of his claims. Plaintiff has not requested an
extension of time to respond to the motions for summary
judgment or otherwise addressed the court with respect to
these motions. Because Plaintiff has failed to file a
response to the motions 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).
alternative, the undersigned will address the arguments
raised in Defendants' motions for summary judgment.
MOTIONS FOR SUMMARY JUDGMENT
makes numerous allegations against the 44 Defendants named in
this case. He first alleges that he has been discriminated
against with respect to the treatment of his serious medical
conditions, including arthritis and nerve damage in his right
shoulder, various stomach illnesses, an unidentified skin
illness, flat-footed abnormalities in his feet, and
thyroiditis. He alleges that other inmates with these same
illnesses have received more significant care and treatment.
remaining allegations appear to arise from Defendants'
alleged discrimination and retaliation against Plaintiff for
filing administrative complaints and civil complaints against
them. Plaintiff alleges that he has been placed in control
cell, denied a shower for weeks, denied out-of-cell
recreation for months, subjected to excessive
force, subjected to illegal searches of his
cell and his legal papers torn, ripped, stolen or misplaced,
subjected to degrading and improper strip searches, sexual
assault and sexual harassment, forced to receive a "bald
head haircut and a no mustache, no beard shave, " placed
on a nutriloaf diet, skipped over for cell cleaning, skipped
over for medication, denied access to the law computer, law
books, legal material and legal copies, subjected to numerous
disciplinary infractions, denied a blanket and mattress, and
forced to take unknown pills-all in "retaliation,
harassment, and discrimination for grieving and complaining
of the Defendants' acts of misconduct." Complaint
alleges that Defendants have violated his First Amendment
rights by retaliating against him for filing grievances
against them, his Fourth Amendment right to be free from
improper search and seizure by searching his cell, his Eighth
Amendment right to be free from cruel and unusual punishment
by their deliberate indifference to his serious medical needs