United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Bristow Marchant United States Magistrate Judge
pro se Petitioner brought this action seeking relief
pursuant to Title 28, United States Code, Section 2254. On
November 15, 2016, the Respondent filed a motion for summary
judgment. As the Petitioner is proceeding pro se, a
Roseboro Order was entered by the Court on November
16, 2016, advising Petitioner of the importance of a
dispositive motion and of the need for him to file an
adequate response. Petitioner was specifically advised that
if he failed to file a properly supported response, the
Respondent's motion may be granted, thereby ending his
case. However, notwithstanding the specific warning and
instructions as set forth in the Court's
Roseboro order, the Petitioner has failed to respond
to the motion, or to contact the Court in any way.
on the foregoing, the undersigned finds that Petitioner meets
all of the criteria for dismissal under Chandler Leasing
Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir.
1982).Accordingly, it is recommended that this
action be dismissed with prejudice for lack of prosecution.
See Davis v. Williams, 588 F.2d 69, 70 (4th Cir.
1978); Rule 41(b), Fed.R.Civ.P.
Clerk shall mail this Report and Recommendation to Petitioner
at his last known address. If the Petitioner notifies the
Court within the time set forth for filing objections to this
Report and Recommendation that he wishes to continue with
this case and provides a response to the motion for summary
judgment, the Clerk is directed to vacate this Report and
Recommendation and return this file to the undersigned for
further handling. If, however, no objections
are filed, the Clerk shall forward this Report and
Recommendation to the District Judge for disposition.
Ballard v. Carlson, 882 F.2d 93, 95 (4th
Cir. 1989), cert denied sub nom, Ballard v.
Volunteers of America, 493 U.S. 1084 (1990) [Magistrate
Judge's prior explicit warning that a recommendation of
dismissal would result from plaintiff failing to obey his
order was proper grounds for the district court to dismiss
suit when plaintiff did not comply despite
parties are referred to the Notice Page attached hereto.
of Right to File Objections to Report and
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 note).
written objections must be filed within fourteen (14) days of
the date of service of this Report and Recommendation. 28
U.S.C. § 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
Robin L. Blume, Clerk United States District Court Post
Office Box 835 Charleston, South Carolina 29402
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. § 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).
He is personally responsible for
proceeding in a dilatory fashion, the Respondent is suffering
prejudice due to having to expend time and resources on a
case in which the Petitioner is unresponsive, and no
sanctions other than dismissal appear to exist as the
Petitioner is indigent (and therefore not subject to monetary
sanctions) and he has otherwise failed to respond to Court
filings despite Court orders requiring him to do so.
Lopez, 669 F.2d at 920.
1 After a litigant has received one
explicit warning as to the consequences of failing to timely
comply with an order of a Magistrate Judge, and has failed to
respond to that order, the district court may, under
Fed.R.Civ.P. 41(b), dismiss the complaint based upon the
litigant's failure to comply with that court order.
See Simpson v. Welch, 900 F.2d 33, 35-36 (4th
Cir.1990); see also Ballard, 882 F.2d at 95-96
[holding that district ...