United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
F. MCDONALD, UNITED STATES MAGISTRATE JUDGE.
August 28, 2017, the plaintiff, proceeding pro se,
filed this action alleging civil rights violations pursuant
to 42 U.S.C. § 1983 (doc. 1). On September 5, 2017, the
plaintiff was ordered to bring this case into proper form, in
part, by providing service documents for the defendants (doc.
7). The plaintiff responded by providing a completed summons
for R. Miller and two Forms USM-285 for R. Miller; he failed
to provide any service documents for the South Carolina
Department of Corrections ("SCDC") (doc. 9). The
plaintiff was given another opportunity to provide the
service documents for SCDC and was specifically told that if
he failed to provide the requested information that the court
would "assume [the plaintiff does] not intend to name
[SCDC] as a defendant" (doc. 11 at 3). The plaintiff was
further warned that failure to comply with the court's
order could result in a recommendation of dismissal
on the foregoing, it appears the plaintiff no longer wishes
to pursue this action against SCDC. "The Federal Rules
of Civil Procedure recognize that courts must have the
authority to control litigation before them, and this
authority includes the power to order dismissal of an action
for failure to comply with court orders." Ballard v.
Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (citing
Davis v. Williams, the Fourth Circuit Court
of Appeals, recognizing that dismissal with prejudice is a
harsh sanction that should not be invoked lightly, set forth
four factors for determining whether Rule 41(b) dismissal is
(1) the degree of personal responsibility on the part of the
(2) the amount of prejudice to the defendant caused by the
(3) the presence or absence of a drawn out history of
deliberately proceeding in a dilatory fashion; and
(4) the effectiveness of sanctions less drastic than
588 F.2d 69, 70 (4th Cir. 1978) (citing McCargo v.
Hedrick, 545 F.2d 393, 396 (4th Cir. 1976)).
Subsequently, however, the Fourth Circuit noted that
“the four factors . . . are not a rigid four-pronged
test, ” and whether to dismiss depends on the
particular circumstances of the case. Ballard, 882
F.2d at 95. For example, in Ballard, the court
reasoned that “the Magistrate's explicit warning
that a recommendation of dismissal would result from failure
to obey his order is a critical fact that distinguishes this
case from those cited by appellant. . . . In view of the
warning, the district court had little alternative to
dismissal. Any other course would have placed the credibility
of the court in doubt and invited abuse.” Id.
the plaintiff is proceeding pro se, he is personally
responsible for his failure to provide the service documents
for SCDC. The plaintiff has had nearly two months to comply
with this court's order, but has failed to do so. Because
the plaintiff has already ignored this court's orders and
deadlines, sanctions less drastic than dismissal of SCDC
would not be effective.
based upon the foregoing, the court recommends the case be
DISMISSED with respect to SCDC pursuant to Federal Rule of
Civil Procedure 41(b).
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 ...