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Moccia v. Van Pelt

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

July 2, 2018

Glenn Michael Moccia, Jr., Plaintiff,
v.
Robert W. Van Pelt, III, Laurens Police Department, Defendants.

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          JACQUELYN D. AUSTIN UNITED STATES MAGISTRATE

         Plaintiff brought this action pro se seeking relief pursuant to 42 U.S.C. § 1983. [Doc. 1.] On December 20, 2017, the Court advised Plaintiff of his duty to keep the Court informed of his current address. [Doc. 8 at 3.] On April 19, 2018, Defendants filed a motion for summary judgment. [Doc. 23.] By Order of this Court on April 20, 2018, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Plaintiff was advised of the summary judgment/dismissal procedure and the possible consequences if he failed to respond adequately to the motion. [Doc. 24.] Despite this explanation, Plaintiff elected not to respond to the motion.[1]

         As Plaintiff is proceeding pro se, the Court filed an Order on June 6, 2018, giving Plaintiff through June 26, 2018, to respond to the motion for summary judgment. [Doc. 32.] Plaintiff 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 / NO SUCH NUMBER / UNABLE TO FORWARD.” [Doc. 35 at 1.] As of the date of this Report and Recommendation, Plaintiff has failed to advise the Court of any change in his address or to file a response to the motion for summary judgment.

         Based on the foregoing, it appears Plaintiff 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)).

         The 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 plaintiff;
(2) the amount of prejudice to the defendant caused by the delay;
(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. at 95-96.

         As Plaintiff is proceeding pro se, he is personally responsible for his failure to file a response to the motion for summary judgment and to advise the Court of the current address at which he can receive mail. Plaintiff has had two months to respond to the motion. Plaintiff's initial response to the motion was due May 21, 2018; despite being advised of the possible consequences if he failed to adequately respond, Plaintiff elected not to respond to the motion. [Doc. 24.] The Court filed a second Order, reminding Plaintiff that a response was due and giving him additional time-until June 26, 2018-to respond. [Doc. 32.] 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 for summary judgment. Because Plaintiff has already ignored Court Orders and deadlines, sanctions less drastic than dismissal would not be effective.

         Wherefore, based upon the foregoing, the Court recommends the case be DISMISSED pursuant to Federal Rule of Civil Procedure 41(b).

         IT IS SO RECOMMENDED.

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