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Hunt v. Miller

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

March 19, 2018

Alteric Hunt, Plaintiff,
v.
R. Miller, Defendant.

          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.

         The plaintiff filed his complaint on August 28, 2017 (doc. 1). By order dated September 5, 2017, the plaintiff was ordered to notify the Clerk of Court upon a change of address, and he was warned that if he failed to comply with a deadline set by the court as a result of his failure to keep the court updated as to his address, his case could be dismissed (doc. 7). On February 12, 2018, the defendant mailed his answer to the plaintiff at Evans Correctional Institution. The answer was returned to the defendant with the notation on the envelope, “Return to Sender, No Longer at this Address” (doc. 33-1, Ryan aff.).

         On February 26, 2018, the defendant filed a motion to dismiss for lack of prosecution (doc. 33). On February 27, 2018, 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, Evans Correctional Institution (doc. 35). On March 15, 2018, the mail was returned to the Clerk of Court as undeliverable, and the envelope had the notation that the plaintiff had been paroled (doc. 38). 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. It is solely through the plaintiff's neglect, and not that of an attorney, that no response has been filed. Meanwhile, the defendant is left to wonder when the action against him will be resolved. The plaintiff has not responded to the defendant's motion to dismiss 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 the defendant's motion to dismiss for lack of prosecution (doc. 33) be granted.

         IT IS SO RECOMMENDED.

         Notice of Right to File Objections to Report ...


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