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McCoy v. Cartledge

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

July 15, 2016

MARK McCOY, Petitioner,
v.
WARDEN CARTLEDGE, Respondent.

          Mark McCoy, Petitioner, Pro Se.

          Warden Cartledge, Respondent, represented by Sherrie Ann Butterbaugh, Office of the Attorney General & Donald John Zelenka, S.C. Attorney General's Office.

          REPORT AND RECOMMENDATION

          THOMAS E. ROGERS, III, Magistrate Judge.

         Petitioner, Mark McCoy (Petitioner), appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254[1] on February 25, 2016. (Doc. #1). Respondent filed a motion for summary judgment on May 2, 2016, along with a return and memorandum. (Docs. #14 and #15). The undersigned issued an order filed May 4, 2016, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. (Doc. #16). On June 8, 2016, Petitioner filed a motion for an extension of time to file a response. This motion was granted, and Petitioner was given until July 8, 2016, to file a response advising him that if he failed to file a response, his case may be dismissed for failure to prosecute. (Doc. #19). Plaintiff failed to file a response.

         RULE 41(B) DISMISSAL

         A complaint may be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989), cert. denied, 493 U.S. 1084 (1990), and Chandler Leasing Corp. v. Lopez, 669 F.2d 919 (4th Cir. 1982). In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:

(1) the degree of plaintiff's responsibility in failing to respond;
(2) the amount of prejudice to the defendant;
(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 (4th Cir. 1978).

         In the present case, the Petitioner is proceeding pro se so he is entirely responsible for his actions. It is solely through Petitioner's neglect, and not that of an attorney, that no responses have been filed. Petitioner has not responded to Respondent's motion for summary judgment or the court's orders requiring him to respond. No other reasonable sanctions are available. Accordingly, it is recommended that this action be dismissed pursuant to Fed. R. Civ. Proc. 41(b).

         CONCLUSION

         Based on the above reasoning, it is RECOMMENDED that this action be dismissed for failure to prosecute pursuant to ...


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