United States District Court, D. South Carolina
Sawyers, Petitioner, Pro Se.
Rogers, Respondent, represented by Barbara Murcier Bowens,
U.S. Attorneys Office.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, Magistrate Judge.
proceeding pro se, brought this action seeking habeas relief
pursuant to 28 U.S.C. Â§ 2241 challenging an administrative
disciplinary action. On June 15, 2016, Respondent filed a
Motion to Dismiss, or in the Alternative, for Summary
Judgment ("Motion"). ECF No. 24. Because Petitioner
is proceeding pro se, on June 17, 2016, the court entered an
Order pursuant to Roseboro v. Garrison, 528 F.2d 309
(4th Cir. 1975) advising him of the importance of a motion to
dismiss and a motion for summary judgment and of the need for
him to file an adequate response. ECF No. 25. Petitioner was
specifically advised that if he failed to respond adequately,
Respondent's Motion may be granted, thereby ending this
case. Notwithstanding the specific warning and instructions
set forth in the court's Roseboro Order,
Petitioner has failed to respond to the Motion. The court
served a second Order on August 3, 2016, directing Petitioner
to file a response to the Motion on or before September 6,
2016. ECF No. 28. The court has received no communication
Petitioner filed no response whatsoever to either of the
court's orders regarding the pending Motion, it appears
that he does not oppose Respondent's Motion and wishes to
abandon his action. Therefore, the undersigned recommends
that Petitioner's action be dismissed with prejudice for
failure to prosecute. See Fed.R.Civ.P. 41(b);
Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978).
Under Davis, a court deciding whether to dismiss a
case under Fed.R.Civ.P. 41(b) must balance the policy of
deciding cases on their merits against "sound judicial
administration." In so doing, the court must weigh: 1)
plaintiff's responsibility for failure to prosecute, 2)
prejudice to defendant from delay, 3) history of delay, and
4) effectiveness of lesser sanctions. Davis, 588
F.2d at 70; see Ballard v. Carlson, 882
F.2d 93, 95-96 (4th Cir. 1989) (noting and applying
Davis factors in dismissing case under Fed.R.Civ.P.
41(b)); Chandler Leasing Corp. v. Lopez, 669 F.2d
919, 920 (4th Cir. 1982) (same)). Based upon the above, and
taking into account the factors in Davis, Ballard,
and Chandler, the undersigned recommends this action
be dismissed with prejudice for failure to prosecute pursuant
to Fed.R.Civ.P. 41(b).
parties are directed to note the important information in the
attached "Notice of Right to File Objections to Report
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.'" Diamond
v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir.
2005) (quoting Fed.R.Civ.P. 72 advisory committee's
written objections must be filed within fourteen (14) days of
the date of service of this Report and Recommendation. 28
U.S.C. Â§ 636(b)(1); Fed.R.Civ.P. 72(b); see
Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal
Rule of Civil Procedure 5 may be accomplished by mailing
to timely file specific written objections to this Report and
Recommendation will result in waiver of the right to appeal
from a judgment of the District Court based upon such
Recommendation. 28 U.S.C. Â§ 636(b)(1); Thomas v.
Arn, 474 U.S. 140 (1985); Wright v. Collins,
766 F.2d 841 (4th Cir. 1985); United States v.
Schronce, 727 F.2d 91 (4th Cir. 1984).
 At the time this case was filed, the
Warden at FCI-Edgefield was L. R. Thomas. This is the name
that Petitioner provided in the caption of his Petition for
the Respondent. ECF No. 1. In the Memorandum in Support of
the Motion to Dismiss or in the Alternative for Summary
Judgment submitted in this case, ECF No. 24, Respondent
indicates that Thomas is no longer the Warden and that the
current Warden at FCI-Edgefield is K. Rogers. Respondent
requests that K. Rogers be substituted as the proper
Respondent. Id. at 2. ...