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Dyke v. Staphen

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

May 22, 2018

Roger Allen Dyke, Plaintiff,
v.
Michael Staphen, Lisa Young, Anite Stevens, Laura H. Kawaguchi, Defendants.

          REPORT AND RECOMMENDATION

          Kevin F. McDonald, United States Magistrate Judge

         The plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to Title 42 United States Code Section 1983 alleging violations of his constitutional rights (doc. 1). This matter is before the undersigned United States Magistrate Judge pursuant 28 U.S.C. § 636(b)(1)(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for initial screening. For the reasons that follow, the undersigned recommends that the district judge dismiss the complaint without prejudice and without service of process.

         BACKGROUND

         The plaintiff initially filed this action on February 9, 2018 along with twenty-eight other prisoners, all of whom are in the Protective Custody Program at the South Carolina Department of Corrections' Broad River Correctional Institution (doc. 1 at 3), apparently seeking class certification for alleged violations of their constitutional rights (see doc. 1 at 12, ¶ 46; doc. 1 at 13, ¶¶ 47, 49, & 50; doc. 1 at 14, ¶ 51) . On March 16, 2018, the court entered an order advising the plaintiff that the action should be separated for initial review. The court determined that the above-captioned case pertained only to the plaintiff Roger Allen Dyke (“the plaintiff”), and the other plaintiffs listed in the initial complaint were sent pro se packets in the event they wanted to pursue their own individual cases (doc. 5 at 4). The plaintiff was advised in the court's March 16, 2018 order that his case was not in proper form for service, and was provided instructions for bringing the case into proper form (doc. 6). The plaintiff was directed to complete, sign, and return a complaint form and to identify all of his individual claims against the defendants, all the facts in support of those claims, all of his injuries resulting from the defendants' actions or inactions. He was also directed to obtain the information required by the financial certificate and have it signed by the appropriate official and to provide service documents: a separate summons form for each defendant and to complete, sign, and date a Form USM-285 for each defendant (doc. 5 at 5-6). The plaintiff was given 21 days from the date the order was entered, plus three days for mailing to comply with the court's order (Id. at 5). The order warned the plaintiff that failure to comply with the order within the time permitted may subject this case to dismissal for failure to prosecute and for failure to follow an order of the court under Rule 41 (Id. at 5).

         On April 2, 2018, the plaintiff signed and returned the complaint form provided, but failed to properly complete it (doc. 1-2). The plaintiff also submitted the service documents requested by the court and filed a motion for leave to proceed in forma pauperis along with the financial certificate requested by the court (docs. 10 and 10-1).

         On April 3, 2018, the court entered a second order advising the plaintiff that his case was not in proper form (doc. 12). The order directed the plaintiff to complete a separate summons form for each defendant named in this matter (Id.). The court acknowledged that it received the summons forms submitted by the plaintiff but the forms were not completed as explained in the court's March 16, 2018 order (doc. 5). The plaintiff was given 21 days from the date the order was entered, plus three days for mailing to comply with the court's order (doc. 12 at 1-2). The order warned the plaintiff that his failure to bring his case into proper form may subject the case to dismissal for failure to prosecute and failure to comply with an order of the court under Rule 41 of the Federal Rules of Civil Procedure (Id. at 1). On 17, 2018, the plaintiff returned the summons forms as directed by the court (doc. 18).

         On April19, 2018, the court issued a third order advising the plaintiff that his case was not in proper form (doc. 21). In this order, the court advised the plaintiff that the pre-printed complaint form returned by the plaintiff on April 2, 2018, failed to provide the information requested. As such, the court directed the plaintiff to complete, sign, and return the court's complaint form (Id. at 1). The plaintiff was directed to describe with specificity the events that supported his individual claims for damages. The plaintiff was also directed to name how each defendant named in the complaint was personally involved in the alleged wrongful actions (Id.). The plaintiff was given 21 days from the date the order was entered, plus three days for mailing to comply with the court's order (Id. at 1). The order warned the plaintiff that failure to bring his case into proper form may subject his case to dismissal for failure to prosecute and failure to comply with an order of the court under Rule 41 of the Federal Rules of Civil Procedure (Id.). The plaintiff has not complied with the court's April 19, 2018 order.

         DISCUSSION

         As indicated above, the plaintiff has not complied with the court's April 19, 19, 2018 order and has failed to provide necessary information to accomplish review and possible service of process under 28 U.S.C. § 1915. The court warned the plaintiff that failure to comply with it order may/would subject his case to dismissal for failure to prosecute.

         It is well established that a district court has authority to dismiss a case for failure to prosecute. “The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power, ' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). In addition to its inherent authority, this court may also sua sponte dismiss a case for lack of prosecution under Federal Rule of Civil Procedure 41(b) (Id. at 630).

         Although a pro se litigant is not held to the same high standards as an attorney, see Hughes v. Rowe, 449 U.S. 5, 10 n. 7 (1980) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), pro se litigants must meet certain standards, including “respect for court orders without which effective judicial administration would be impossible.” Ballard v. Carlson, 882 F.2d 93, 96 (4th Cir.1989). Thus, pro se litigants are subject to the provisions of Rule 41.

         Based on the plaintiff's failure to fully respond to the court's April 19, 2018 order (doc. 22), the undersigned concludes the plaintiff does not intend to pursue the above-captioned matter. Because the plaintiff failed to fully comply with an order of this court after being warned that his failure to comply would result in dismissal, it does not appear that any sanction less drastic than dismissal is available. See Ballard, 882 F.2d at 96 (finding the magistrate judge's explicit warning that a recommendation of dismissal would result from the plaintiff's failure to obey his order gave the district court little alternative to dismissal). As such, this case should be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See Ballard, 882 F.2d at 95 (finding that dismissal of a suit did not constitute abuse of discretion where the plaintiff “failed to respond to a specific directive from the court”).

         CONCLUSION

         Accordingly, the undersigned recommends that this case be dismissed without prejudice for failure to prosecute and failure to comply with this court's orders pursuant to Federal Rule of Civil Procedure 41(b). The plaintiff's ...


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