United States District Court, D. South Carolina, Greenville Division
REPORT OF MAGISTRATE JUDGE
F. McDonald, United States Magistrate Judge
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.
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).
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
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.
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.
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
(2) the amount of prejudice to the defendant caused by the
(3) the history of the plaintiff in proceeding in a dilatory
(4) the existence of less drastic sanctions other than
Davis v. Williams, 588 F.2d 69, 70 (4th Cir.1978).
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.
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 ...