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Neal v. Cannon

United States District Court, D. South Carolina, Greenville Division

March 13, 2018

Craig R. Neal, Plaintiff,
v.
J. Al Cannon, Jr. and M. Cox, Defendants.

          REPORT OF MAGISTRATE JUDGE

          Kevin F. McDonald United States Magistrate Judge

         The plaintiff, who is proceeding pro se, brought this action seeking relief pursuant to Title 42, United States Code 1983. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under Section 1983 and submit findings and recommendations to the district court.

         On January 16, 2018, the defendants filed a motion to dismiss for failure to state a claim, or in the alternative, for summary judgment (doc. 28). By order filed the same date, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised by mail of the summary judgment and dismissal procedure and the possible consequences if he failed to respond adequately, with the order being mailed to his address of record, the Sheriff Al Cannon Detention Center (doc. 29). On January 24, 2018, the mail was returned as undeliverable (doc. 32). The plaintiff did not thereafter file a response or otherwise contact the court.

         As the plaintiff is proceeding pro se, the court filed a second order on February 20, 2017, giving the plaintiff through March 12, 2018, in which to file his response to the pending motion (doc. 33). The plaintiff was again specifically advised by mail that, if he failed to respond, this action would be dismissed for failure to prosecute. On February 26, 2018, the mail was returned as undeliverable (doc. 35). The plaintiff did not thereafter file a response or otherwise contact the court.

         A complaint may be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989). In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:

(1) the degree of personal responsibility on the part of the plaintiff;
(2) the amount of prejudice to the defendant caused by the delay;
(3) the history of the plaintiff in proceeding in a dilatory manner; and,
(4) the existence of less drastic sanctions other than dismissal.

Davis v. Williams, 588 F.2d 69, 70 (4th Cir.1978).

         In the present case, the plaintiff is proceeding pro se, and he is thus entirely responsible for his actions. By order dated August 25, 2017, the plaintiff was ordered to notify the court upon a change of address (doc. 10), but he has failed to do so. It is solely through the plaintiff's neglect, and not that of an attorney, that no response has been filed. Meanwhile, the defendants are left to wonder when the action against them will be resolved. The plaintiff has not responded to the defendants' motion for summary judgment or the court's orders requiring him to respond. Accordingly, the undersigned concludes the plaintiff has abandoned his lawsuit. No other reasonable sanctions are available.

         Based on the foregoing, it appears the plaintiff no longer wishes to pursue this action. Accordingly, it is recommended that this action be dismissed for lack of prosecution pursuant to Rule 41(b). Should the district court adopt this recommendation, the defendants' motion to dismiss for failure to state a claim, or in the alternative, for summary judgment (doc. 28) will be rendered moot.

         IT IS SO RECOMMENDED.

         Notice of Right to File Objections to Report ...


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