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Goldman v. Hines

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

April 20, 2018

Jeffery Daryl Goldman, Plaintiff,
v.
Robbie Hines, Jennifer Nave, and Derrick O'Shields, Defendants.

          REPORT OF MAGISTRATE JUDGE

          Kevin F. McDonald, United States Magistrate Judge.

         The plaintiff, a former state prisoner 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 July 7, 2017, alleging he was denied medical care while he was detained at the Union County Jail (doc. 1). On January 12, 2018, the defendants filed a motion for summary judgment (doc. 37). On January 16, 2018, by order of this court filed pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the summary judgment procedure and the possible consequences if he failed to respond adequately to the defendants' motion. The plaintiff did not file a response.

         As the plaintiff is proceeding pro se, the court filed a second order on February 20, 2018, giving the plaintiff through March 12, 2018, in which to file his response to the motion for summary judgment (doc. 40). The plaintiff was again specifically advised that, if he failed to respond, this action would be subject to dismissal for failure to prosecute. On March 15, 2018, the plaintiff's motion for extension of time to file his response to the motion for summary judgment (doc. 42) was granted, and he was given through April 16, 2018, to file his response (doc. 44). As of today's date, the plaintiff has not filed a response.

         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 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). The Clerk shall mail this report and recommendation to the plaintiff at his last known address with a notice regarding the time limitations for objections. If the plaintiff notifies the court within the time set forth for filing objections to this report and recommendation that he wishes to continue with this case and provides a response to the motion for summary judgment, the Clerk is directed to vacate this report and recommendation and return this file to the undersigned for further handling. If, however, no objections are filed, the Clerk shall forward this report and recommendation to the District Judge for disposition. Should the District Judge adopt this recommendation, the defendants' motion for summary judgment (doc. 37) will be rendered moot.

         IT IS SO RECOMMENDED.

         Notice of Right to File Objections to Report ...


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