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Kincannon v. Doe

United States District Court, D. South Carolina

June 5, 2018

J. Todd Kincannon, Plaintiff,
v.
John Doe, the Lexington County deputy sheriff; Richard Roe, the Lexington County EMS employee; and Frank Foe, the Lexington Medical Center employee, all with decision making authority as to the actionable conduct described herein; The State of South Carolina, a state sovereign liable for the actionable conduct described herein to the extent sovereign immunity is unasserted or unavailable; Lexington County, a body politic and corporate organized and existing under the laws of the State of South Carolina, liable for the actionable conduct described herein under Monell
v.
DSS, 436 U.S. 658 1978 and other federal and state laws; and Lexington Medical Center, a body corporate organized and existing under the law of the State of South Carolina, liable for the actionable conduct described herein under Monell
v.
DSS, 436 U.S. 658 1978 and other federal and state laws, Defendants.

          REPORT AND RECOMMENDATION

          SHIVA V. HODGES COLUMBIA, UNITED STATES MAGISTRATE JUDGE

         J. Todd Kincannon (“Plaintiff”), proceeding pro se and in forma pauperis, filed this action alleging violations of his civil rights. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge. For the reasons that follow, the undersigned recommends that the district judge dismiss the complaint without prejudice and without issuance and service of process.

         On April 9, 2018, the court ordered Plaintiff to complete the service documents necessary to advance his case by April 30, 2018. [ECF No. 8]. Plaintiff was warned that the failure to comply with the court's order may subject the case to dismissal. Id. Plaintiff did not file a response. The court issued a second order on May 7, 2018, again directing Plaintiff to complete the service documents necessary to advance his case by May 29, 2018. [ECF No. 12]. Plaintiff was again warned that failure to comply with the court's order may subject the case to dismissal. Id. Plaintiff did not file a response.

         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 RR. 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 Fed.R.Civ.P. 41(b). Id. at 630. Based on Plaintiffs failure to respond to the court's April 9 and May 7, 2018 orders, the undersigned concludes Plaintiff does not intend to pursue the above-captioned matter. Accordingly, the undersigned recommends this case be dismissed without prejudice for failure to prosecute pursuant to Fed.R.Civ.P. 41.

         IT IS SO RECOMMENDED.

         The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.

         Notice of Right to File Objections to Report and Recommendation

         The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

         Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201

         Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 7 ...


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