United States District Court, D. South Carolina, Florence Division
McCoy, Petitioner, Pro Se.
Cartledge, Respondent, represented by Sherrie Ann
Butterbaugh, Office of the Attorney General & Donald John
Zelenka, S.C. Attorney General's Office.
REPORT AND RECOMMENDATION
E. ROGERS, III, Magistrate Judge.
Mark McCoy (Petitioner), appearing pro se, filed his
petition for a writ of habeas corpus pursuant to 28 U.S.C. Â§
2254 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
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
(2) the amount of prejudice to the defendant;
(3) the history of the plaintiff in proceeding in a dilatory
(4) the existence of less drastic sanctions other than
Davis v. Williams, 588 F.2d 69 (4th Cir. 1978).
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).
on the above reasoning, it is RECOMMENDED that this action be
dismissed for failure to prosecute pursuant to ...