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Wicks v. Haley

United States District Court, D. South Carolina

April 6, 2017

David Bryant Wicks, Plaintiff,
v.
Hon. Nikki R. Haley, Sheriff Kenny Boone, E.L. Clements, III, Connie Reel-Shearin, James W. Carter, Anita Scott, Angie N. West, Rick Ervin, Sgt. Huggins, Sheriff Kevin L. Auten, Sgt. Marielle Kruk, Jeff Johnson, William
v.
Meetze, Sgt. Christopher Niel, Hon. McCrory, Defendants.

          REPORT AND RECOMMENDATION

          Thomas E. Rogers, III United States Magistrate Judge

         This is a civil rights action filed by a pro se litigant who at various times since the filing of his complaint has been a pretrial detainee, a prisoner, and a nonprisoner.[1] Because Plaintiff could not leave the facility where he was detained on his own, in the event that a limitations issue arises, Petitioner shall have the benefit of the holding in Houston v. Lack, 487 U.S. 266 (1988) (prisoner's pleading was filed at the moment of delivery to prison authorities for forwarding to District Court). Under Local Civil Rule 73.02(B)(2) of the United States District Court for the District of South Carolina, pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.

         BACKGROUND

         Plaintiff alleges claims for false imprisonment, illegal transfer/transport, malicious prosecution, failure to protect, and deliberate indifference to medical care. Plaintiff's claims are associated with his extradition from North Carolina to South Carolina.

         On April 23, 2015, Plaintiff was convicted of larceny in North Carolina and was sentenced to probation.[2] On May 18, 2015, Plaintiff was arrested in South Carolina for forgery. (ECF Nos. 1-3, 1-5). He was released on bond around June 12, 2015. (ECF No. 1-5). He alleges he was then incarcerated in Florida around June 23, 2015, with “holds” from North Carolina and South Carolina placed on him in Florida around August 20, 2015. (ECF No. 1-5 at 3). Florida released and transferred Plaintiff to North Carolina on November 19, 2015. (ECF No. 1-5 at 6). A North Carolina Magistrate's Order for Fugitive was issued on December 30, 2015, and Plaintiff signed a waiver of extradition on December 30, 2015. (ECF No. 1 at 11).

         Plaintiff attaches a letter dated April 11, 2016, from North Carolina to South Carolina acknowledging that North Carolina received South Carolina's detainer and Plaintiff was currently serving a North Carolina sentence with a release date of July 13, 2016. (ECF No. 1-3 at 34).

         Plaintiff alleges that on July 29, 2016, Defendant Clements applied for a governor's warrant with the knowledge Plaintiff had already waived extradition. On September 8, 2016, Plaintiff was transferred from North Carolina to South Carolina, while a hearing contesting his extradition was set in North Carolina for October 3, 2016. (ECF No. 1 at 7).

         On December 8, 2016, Plaintiff pleaded guilty to charges in South Carolina, was sentenced to time served, and was released.[3] On December 11, 2016, Plaintiff was arrested in South Carolina and was released on December 15, 2016, to Florida's custody on different charges. Plaintiff was incarcerated in Florida twice in January 2017 and was released twice.[4]

         Plaintiff filed his Complaint on November 16, 2016. (ECF No. 1). On November 18, 2016, the court issued an order that Plaintiff bring the case into proper form by submitting an appropriately completed summons form, Forms USM-285 for each Defendant, and a completed Complaint Form. (ECF No. 7). Plaintiff responded to the order on November 30, 2016, and on December 5, 2016, in partial compliance. (ECF Nos. 12, 18). On December 7, 2016, the court ordered Plaintiff to bring the case into proper form by submitting an appropriately completed summons form and correcting five of the Forms USM-285 and submitting one missing Form USM-285. (ECF No. 22). The order noted that in response to the prior order, Plaintiff had submitted a blank summons form entirely. (ECF No. 22). The court's orders gave explicit instructions how to complete the forms. (ECF No. 22).

         On December 9, 2016, Plaintiff submitted additional service documents. (ECF No. 25). On January 6, 2017, Plaintiff notified the Clerk of a change of address to a jail in Florida. (ECF No. 31). On January 9, 2017, the court issued a third order instructing Plaintiff to bring this case into proper form by submitting an appropriately completed summons form. (ECF No. 32). Again, the court's order noted: “This is the third order issued by this court requesting this information. Plaintiff has submitted a blank summons form back to the court each time which was blank for the “TO:” portion. Plaintiff must fill out the summons form himself as instructed above. The other items requested by the two prior orders have been received and are in substantial compliance for the case to be considered in proper form.” (ECF No. 32).

         Plaintiff called the clerk's office on January 11, 2017, stating he had been released and would send a change of address. The Third Proper Form Order and the Order Ruling on Report and Recommendation both returned as undeliverable on January 23, 2017, and January 26, 2017. (ECF Nos. 37 and 38).[5] On January 26, 2017, Plaintiff called the clerk's office and gave a new address and asked to resend the Third Proper Form Order. The clerk's office requested a written change of address form. The clerk's office remailed the returned order on January 26, 2017. (ECF No. 40). The mail did not return. Plaintiff did not file an address change and has not responded to the Third Proper Form Order.

         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. denied493 U.S. 1084 (1990) and Chandler Leasing Corp. v. Lopez, 669 F.2d 919 (4th Cir.1982). In considering ...


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