Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hurley v. Byrd

United States District Court, D. South Carolina, Anderson/Greenwood Division

May 2, 2018

Bernard A. Hurley, Plaintiff,
v.
Robbie Byrd, Defendant.

          REPORT OF MAGISTRATE JUDGE

          Kevin F. McDonald, United States Magistrate Judge

         The plaintiff, a 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 26, 2017, alleging that the defendant illegally searched him and his vehicle and that his vehicle was improperly seized as forfeiture for drug charges (doc. 1).[1] On August 2, 2017, the plaintiff was ordered to keep the Clerk of Court advised in writing if his address changed for any reason (doc. 6). On February 23, 2018, the defendant filed a motion for summary judgment (doc. 88). On the same date by order 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 defendant's motion. On March 2, 2018, the Roseboro order was returned to the court as undeliverable (doc. 93). On March 5, 2018, the Clerk of Court re-mailed the order to the plaintiff with the addition of the plaintiff's inmate number. The order was returned to the court again on March 27, 2018 (doc. 98). On March 26, 2018, the defendant submitted a certificate of service that noted he had sent a copy of his motion for summary judgment to the plaintiff at a new address. In turn, the Clerk of Court mailed the Roseboro order to the plaintiff again at the new address on March 27, 2018 (doc. 100). The deadline for the plaintiff's response to the motion for summary judgment was April 30, 2018. The plaintiff did not file 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 defendant is left to wonder when the action against him will be resolved. The plaintiff has not responded to the defendant's motion for summary judgment or the court's order requiring him to respond. Moreover, he has not kept his address updated as directed by court order. 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 defendant's motion for summary judgment (doc. 88) will be rendered moot.

         IT IS SO RECOMMENDED.

         Notice of Right to File Objections to Report and Recommendation

         The parties are advised that they may file specific written objections to this port and Recommendation with the District Judge. Objections must specifically entify the portions of the Report and Recommendation to which objections are made d the basis for such objections. “[I]n the absence of a timely filed objection, a district urt need not conduct a de novo review, but instead must ‘only satisfy itself that there no clear error on the face of the record in order to accept the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.