United States District Court, D. South Carolina, Greenville Division
REPORT AND RECOMMENDATION OF MAGISTRATE
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE
brought this action in the Northern District of Georgia, and
it was transferred to this Court on December 1, 2017. On
December 11, 2017, Defendants Chandra Grant and Tyanna Hardy
("the Moving Defendants") filed a motion to
dismiss. [Doc. 23.] By Order of this Court filed December 12,
2017, pursuant to Roseboro v. Garrison, 528 F.2d 309
(4th Cir. 1975), Plaintiff was advised of the summary
judgment/dismissal procedure and the possible consequences if
he failed to respond adequately. [Doc. 24.] Despite the
explanation regarding the consequences for failing to
respond, Plaintiff failed to respond to the motion.
Plaintiff is proceeding pro se, the Court filed an Order on
January 19, 2018, giving Plaintiff through February 8, 2018,
to respond to the Moving Defendants' motion to dismiss.
[Doc. 30.] Plaintiff was specifically advised that if he
failed to respond, this action would be dismissed with
respect to the Moving Defendants for failure to prosecute.
[Id.] On February 9, 2018, the Court granted
Plaintiff an extension until February 28, 2018, to respond to
the motion, again reminding Plaintiff that the action would
be dismissed with respect to the Moving Defendants for
failure to prosecute if he failed to respond. [Doc. 35.] On
March 1, 2018, Plaintiff filed a motion to stay his
opposition to the motion to dismiss. [Doc. 38.] On March 16,
2018, the Court denied Plaintiff's motion to stay his
opposition and ordered Plaintiff to respond to the Moving
Defendants' motion to dismiss by April 5, 2018. [Doc.
45.] Plaintiff was again reminded that the action would be
dismissed with respect to the Moving Defendants for failure
to prosecute if he failed to respond. [Id.] However,
Plaintiff has failed to respond to the Moving Defendants'
motion to dismiss.[*]
on the foregoing, it appears Plaintiff no longer wishes to
pursue this action against the Moving Defendants. “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 Fed.R.Civ.P. 41(b)). “Federal courts possess an
inherent authority to dismiss cases with prejudice sua
sponte.” Gantt v. Md. Div. of Corr., 894
F.Supp. 226, 229 (D. Md. 1995) (citing Link v. Wabash R.
Co., 370 U.S. 626 (1962); White v. Raymark Indust.,
Inc., 783 F.2d 1175 (4th Cir. 1986); Zaczek v.
Fauquier Cnty., Va., 764 F.Supp. 1071, 1074 (E.D.
Fourth Circuit, in Davis v. Williams, 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 appropriate:
(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.
Plaintiff is proceeding pro se, he is personally responsible
for his failure to respond to the motion to dismiss.
Plaintiff has had over four months to respond to the Moving
Defendant's motion to dismiss. Plaintiff's initial
response was due by January 12, 2018; despite being advised
of the possible consequences if he failed to adequately
respond, Plaintiff elected not to respond to the motion. The
Court filed another Order, reminding Plaintiff a response was
due and giving him additional time-until February 8, 2018,
and extended to February 28, 2018-to respond. Rather than
filing a response to the motion to dismiss, Plaintiff filed a
motion to stay his opposition. The Court denied
Plaintiff's motion to stay his opposition and extended
Plaintiff's deadline to respond to the Moving
Defendants' motion to dismiss until April 5, 2018. The
Court has warned Plaintiff multiple times that the case would
be dismissed with respect to the Moving Defendants pursuant
to Rule 41(b) if Plaintiff failed to file a response. Despite
these explanations, Plaintiff has elected not to respond.
Because Plaintiff has already ignored Court Orders and
deadlines, sanctions less drastic than dismissal would not be
based upon the foregoing, the Court recommends the case be
DISMISSED as to Defendants Chandra Grant and Tyanna Hardy
pursuant to Federal Rule of Civil Procedure 41(b).