United States District Court, D. South Carolina, Greenville Division
REPORT AND RECOMMENDATION OF MAGISTRATE
JACQUELYN D. AUSTIN UNITED STATES MAGISTRATE
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
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.
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)).
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.
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.
based upon the foregoing, the Court recommends the case be
DISMISSED pursuant to Federal Rule of Civil Procedure 41(b).