United States District Court, D. South Carolina, Charleston Division
Richard Mark Oergel United States District Court Judge
matter is before the Court on the Report and Recommendation
of the Magistrate Judge, recommending that this action be
dismissed for failure to prosecute pursuant to Rule 41(b) of
the Federal Rules of Civil Procedure. For the reasons set
forth below, the Court adopts the Report and Recommendation
in part and dismisses this action.
a prisoner incarcerated at the South Carolina Department of
Corrections' Perry Correctional Institution (PCI),
proceeds pro se and brings this action pursuant to
42 U.S.C. § 1983. Plaintiff alleges numerous
constitutional violations arising from discrimination and
retaliation for filing grievances against forty-four (44)
named Defendants. One Defendant, Siva Chockalingham, has
moved to dismiss for failure to state a claim (Dkt. No. 90)
and the remaining Defendants have moved for summary judgment
(Dkt. No. 94). Plaintiff failed to respond to those motions,
despite repeated warnings pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), that a failure
to respond could result in the motions being granted.
26, 2016, the Magistrate Judge entered a Report and
Recommendation recommending dismissal for failure to
prosecute, or, in the alternative, granting Defendant's
dispositive motions. (Dkt. No. 106). Plaintiff filed no
objections to the Report and Recommendation.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). This Court is charged with making a de novo
determination of those portions of the Report and
Recommendation to which specific objection is made.
Additionally, the Court may "accept, reject, or modify,
in whole or in part, the findings or recommendations made by
the magistrate judge." 28 U.S.C. § 636(b)(1). This
Court may also "receive further evidence or recommit the
matter to the magistrate judge with instructions."
Id. Where the plaintiff fails to file any specific
objections, "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, " see Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(internal quotation omitted), and this Court is not required
to give any explanation for adopting the recommendation of
the Magistrate Judge, Camby v. Davis, 718 F.2d 198
(4th Cir. 1983).
Court agrees with the Magistrate Judge's recommendation
that this action be dismissed with prejudice pursuant to Rule
41(b) of Federal Rules of Civil Procedure. Whether to dismiss
under Rule 41(b) is a matter for the Court's discretion,
Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978).
The Fourth Circuit provides a four-prong test for Rule 41(b)
dismissal that requires courts to consider: (1) the degree of
personal responsibility of the Plaintiff; (2) the amount of
prejudice caused the Defendant; (3) the existence of a
"drawn-out history of deliberately proceeding in a
dilatory fashion"; and (4) the existence of sanctions
less drastic than dismissal. Chandler Leasing Corp. v.
Lopez, 669 F.2d 919, 920 (4th Cir. 1982). The Magistrate
Judge applied this test in the Report and Recommendation and
Court agrees with the Magistrate Judge's analysis:
Plaintiffs personal responsibility is manifest, Plaintiff has
prejudiced the Defendant's ability to defend this action,
and the only available sanction less drastic than dismissal
is a monetary penalty, (SeeR&R 3.)
docket clearly shows a "drawn-out history of
deliberately proceeding in a dilatory fashion."
Plaintiff failed to respond to the Court's second proper
form order (Dkt. No. 49), to the Court's third proper
form order (Dkt. No. 70), to the Court's
Roseboro order regarding Defendant
Chockalingam's motion to dismiss (Dkt. No. 92), to the
Court's Roseboro order regarding the other
Defendants' motion for summary judgment (Dkt. No. 95), or
to the Court's subsequent order dated May 26, 2016 again
directing Plaintiff to respond to those motions (Dkt. No.
100). Plaintiff has filed no objections to the Magistrate
Judge's recommendation that this action be dismissed for
failure to prosecute (Dkt. No. 106). Since filing his
complaint on April 7, 2015, Plaintiffs only filings have been
(1) an additional document in support of Plaintiff s in
forma pauperis application, received June 8, 2015 (Dkt.
No. 2-2), (2) a change of address mailed on June 15, 2015
(Dkt. No. 12), and (3) a letter to the Clerk mailed on
November 17, 2015 requesting a copy of the docket (Dkt. No,
77). Plaintiff has not prosecuted this action in any
meaningful way since filing it, despite the fact that
Plaintiff is, from prior experience, well aware of the
consequences of failing to prosecute an action. See,
e.g., Goins v. Pacheco, 4:14-4639-RMG (D.S.C. Jan. 8,
2016) (dismissed for failure to prosecute); Goins v. S.C.
Dep't Corrs., 4:12-1924-CMC (D.S.C. Sept. 20, 2012)
(dismissed for failure to prosecute); Goins v. SMUS.C.
Dep't Corrs., 4:12-1593-CMC (D.S.C.Aug. 8, 2012)
(dismissed for failure to prosecute); Gains v. S.C.
Dep't Corrs,, 2:11-1182-CMC (D.S.C. July 6, 2011)
(dismissed for failure to prosecute); Goins v.
Olsen, 4:10-487-CMC (D.S.C. Feb. 25, 2011) (dismissed
for failure to prosecute); Goins v. Voiselle,
4:06-2516-CMC (D.S.C. Oct. 22, 2007) (dismissed for failure
to prosecute); see also, e.g., Goins v. Palmetto Med. Or.
at Park Ridge, 4:14-4082-RMG (D.S.C. May 1, 2015)
(summary dismissal without service of process); Goins v.
Hallman, 4:14-742-RMG (D.S.C. June 3, 2014) (summary
dismissal without service of process); Goins v.
Home, 4:13-1269-RMG (D.S.C. Aug. 29, 2014) (summary
judgment for defendants); Goins v. Pearson,
4:12-3494-RMG (D.S.C. May 29, 2014) (summary judgment for
foregoing reasons, the Court ADOPTS pages one to three of the
Report and Recommendation (Dkt. No. 106) as the Order of the
Court and DISMISSES WITH PREJUDICE the Complaint (Dkt. No.