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Kaminski v. Morrison

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

April 30, 2018

Michael Joseph Kaminski, Plaintiff,
Officer Morrison, Cpl. Catchot, and Randy Demory, Defendants.


          Kevin F. McDonald, United States Magistrate Judge

         The plaintiff brought this action seeking relief pursuant to Title 42, United States Code, Section 1983, alleging that on March 14, 2016, the defendants Officer Morrison, Cpl. Catchot, and Randy Demory failed to protect him from two separate sexual assaults by former defendants Michael Doyle and Billy Balies (doc. 1-1 at 3, 67). 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 is presently in the custody of the South Carolina Department of Mental Health under the provisions of the South Carolina Sexually Violent Predator Act. S.C. Code Ann. §§ 44-48-10 to 44-48-170. At the time of the events giving rise to this action, the plaintiff was a pretrial detainee at the Berkeley County Detention Center (see generally doc 1-1 at 65-67). The plaintiff initially filed this action in the Berkeley County Court of Common Pleas, and it was removed to this court by counsel for defendants Officer Morrison, Cpl. Catchot, and Randy Demory on September 14, 2017 (doc. 1).

         On March 19, 2018, the undersigned issued a report and recommendation with respect to former defendants Doyle and Balies recommending they be dismissed from the case as they are not amenable to suit under Section 1983 (doc. 44 at 4). The plaintiff did not file any objections to that report. On April 24, 2018, the Honorable R. Bryan Harwell, United States District Judge, issued an order adopting that recommendation and dismissing defendants Doyle and Balies without prejudice and without issuance and service of process (doc. 50).

         On February 23, 2018, defendants Catchot, Demory, and Morrison filed a motion to dismiss for failure to state a claim or, in the alternative, for summary judgment (doc. 40). On February 26, 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 motion to dismiss and summary judgment procedures and the possible consequences if he failed to respond adequately to the defendants' motion (doc. 42). The plaintiff did not file a response. As the plaintiff is proceeding pro se, the court filed a second order on April 2, 2018, giving the plaintiff through April 23, 2018, in which to file his response to the defendants' motion (doc. 46).[1] The plaintiff was again specifically advised that, if he failed to respond, this action would be subject to dismissal for failure to prosecute. 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 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 against remaining defendants Catchot, Demory, and Morrison. 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 the case and provides a response to the motion to dismiss, 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 ...

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