United States District Court, D. South Carolina, Anderson/Greenwood Division
Lee V. Thomas, III, Petitioner,
Warden Bonita S. Mosely, Respondent. v.
REPORT AND RECOMMENDATION OF MAGISTRATE
Jacquelyn D. Austin United States Magistrate Judge.
brought this action pro se seeking relief pursuant to 28
U.S.C. § 2241. [Doc. 1.] On October 30, 2017, the Court
advised Petitioner of his duty to keep the Court informed of
his current address. [Doc. 5 at 2.] On April 17, 2018,
Respondent filed a motion to deny habeas petition. [Doc. 27.]
By Order of this Court filed on April 18, 2018, pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
Petitioner was advised of the summary judgment/dismissal
procedure and the possible consequences if he failed to
respond adequately. [Doc. 28.] Despite this explanation,
Petitioner elected not to respond to the
Petitioner is proceeding pro se, the Court filed an Order on
May 25, 2018, giving Petitioner through June 14, 2018, to
respond to the motion to deny habeas petition. [Doc. 31.]
Petitioner was specifically advised that if he failed to
respond, this action would be dismissed for failure to
prosecute. [Id.] The Order was returned to the
Court, marked “RETURN TO SENDER / NOT DELIVERABLE AS
ADDRESSED / UNABLE TO FORWARD.” [Doc. 34 at 1.] As of
the date of this Report and Recommendation, Petitioner has
failed to advise the Court of any change in his address or to
file a response to the motion for summary judgment.
on the foregoing, it appears Petitioner no longer wishes to
pursue this action. “The Federal Rules of Civil
Procedure recognize that courts must have the authority to
control litigation before them, and this authority includes
the power to order dismissal of an action for failure to
comply with court orders.” Ballard v. Carlson,
882 F.2d 93, 95 (4th Cir. 1989) (citing Fed.R.Civ.P. 41(b)).
“Federal courts possess an inherent authority to
dismiss cases with prejudice sua sponte.” Gantt v.
Md. Div. of Corr., 894 F.Supp. 226, 229 (D. Md. 1995)
(citing Link v. Wabash R. Co., 370 U.S. 626 (1962);
White v. Raymark Indust., Inc., 783 F.2d 1175 (4th
Cir. 1986); Zaczek v. Fauquier Cty., Va., 764
F.Supp. 1071, 1074 (E.D. Va.1991)).
Fourth Circuit, in Davis v. Williams, recognizing
that dismissal with prejudice is a harsh sanction that should
not be invoked lightly, set forth four factors for
determining whether Rule 41(b) dismissal is appropriate:
(1) the degree of personal responsibility on the part of the
(2) the amount of prejudice to the defendant caused by the
(3) the presence or absence of a drawn out history of
deliberately proceeding in a dilatory fashion; and (4) the
effectiveness of sanctions less drastic than dismissal.
588 F.2d 69, 70 (4th Cir. 1978) (citing McCargo v.
Hedrick, 545 F.2d 393, 396 (4th Cir. 1976)).
Subsequently, however, the Fourth Circuit noted that
“the four factors . . . are not a rigid four-pronged
test, ” and whether to dismiss depends on the
particular circumstances of the case. Ballard, 882
F.2d at 95. For example, in Ballard, the court
reasoned that “the Magistrate's explicit warning
that a recommendation of dismissal would result from failure
to obey his order is a critical fact that distinguishes this
case from those cited by appellant. . . . In view of the
warning, the district court had little alternative to
dismissal. Any other course would have placed the credibility
of the court in doubt and invited abuse.” Id.
Petitioner is proceeding pro se, he is personally responsible
for his failure to file a response to the motion to deny
habeas petition and to advise the Court of the current
address at which he can receive mail. Petitioner has had
almost two months to respond to the motion. Petitioner's
initial response to the motion was due May 21, 2018; despite
being advised of the possible consequences if he failed to
adequately respond, Petitioner elected not to respond to the
motion. [Doc. 28.] The Court filed a second Order, reminding
Petitioner that a response was due and giving him additional
time—until June 14, 2018—to respond. [Doc. 31.]
That Order was returned to the Court as undeliverable. The
Court has specifically warned Plaintiff that the case would
be subject to dismissal if he failed to update his address
and thereby failed to meet a Court deadline. Despite this
explanation, Plaintiff has elected not to update his address
and has failed to file a response to the motion to deny
habeas petition. Because Petitioner has already ignored Court
Orders and deadlines, sanctions less drastic than dismissal
would not be effective.
based upon the foregoing, the Court recommends the case be
DISMISSED pursuant to Federal Rule of Civil Procedure 41(b).