United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
E. Rogers, III United States Magistrate Judge
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. 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.
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.
April 23, 2015, Plaintiff was convicted of larceny in North
Carolina and was sentenced to probation. 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).
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).
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).
December 8, 2016, Plaintiff pleaded guilty to charges in
South Carolina, was sentenced to time served, and was
released. 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.
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).
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).
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
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.
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