United States District Court, D. South Carolina
David M. Persons, # 10449-088, Petitioner,
Hector Joyner Warden, Respondent.
REPORT AND RECOMMENDATION
BRISTOW MARCHANT UNITED STATES MAGISTRATE JUDGE
se Petitioner brought this action seeking relief pursuant to
Title 28, United States Code, Section 2241. On May 17, 2018,
the Respondent filed a motion to dismiss. As the Petitioner
is proceeding pro se, a Roseboro Order was entered
by the Court on May 18, 2018, advising Petitioner of the
importance of a dispositive motion and of the need for him to
file an adequate response. Petitioner was specifically
advised that if he failed to file a properly supported
response, the Respondent's motion may be granted, thereby
ending his case. However, notwithstanding the specific
warning and instructions as set forth in the Court's
Roseboro order, the Petitioner has failed to respond
to the motion, or to contact the Court in any
on the foregoing, the undersigned finds that Petitioner meets
all of the criteria for dismissal under Chandler Leasing
Corp. v. Lopez. 669 F.2d 919, 920 (4th Cir.
1982).Accordingly, it is recommended that this
action be dismissed with prejudice for lack of prosecution.
See Davis v. Williams. 588 F.2d 69, 70 (4th Cir.
1978); Rule 41(b), Fed.R.Civ.P. The Clerk shall mail
this Report and Recommendation to Petitioner at his last
known address. See Court Docket No. 19. If the Petitioner
notifies the Court within the time set forth for filing
objections to this Report and Recommendation that he wishes
to continue with this case and provides a response to the
motion for summary judgment, the Clerk is directed to vacate
this Report and Recommendation and return this file to the
undersigned for further handling. If, however, no
objections are filed, the Clerk shall forward this Report and
Recommendation to the District Judge for disposition.
Ballard v. Carlson. 882 F.2d 93. 95 (4th
Cir. 1989). cert, denied sub nom. Ballard v.
Volunteers of America. 493 U.S. 1084 (1990) [Magistrate
Judge's prior explicit warning that a recommendation of
dismissal would result from plaintiff failing to obey his
order was proper grounds for the district court to dismiss
suit when plaintiff did not comply despite
parties are referred to the Notice Page attached horeto
of Right to File Objections to Report and
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.'"
Diamondv. Colonial Life & Ace. Ins. Co., 416
F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72
advisory committee's note).
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
L. Blume, Clerk United States District Court Post Office Box
835 Charleston, South Carolina 29402
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, 766 F.2d 841 (4th Cir. 1985); United States
v. Schronce, 727 F.2d 91 (4th Cir. 1984).
It is noted that in the motion to
dismiss, the Respondent states that Petitioner has received
the relief requested in his § 2241 Petition.
See Court Docket No. 13.
He is personally responsible for
proceeding in a dilatory fashion, the Respondent is suffering
prejudice due to having to expend time and resources on a
case in which the Petitioner is unresponsive, and no
sanctions other than dismissal appear to exist as the
Petitioner has failed to respond to Court filings despite
Court orders requiring him to do so. Lopez. 669 F.2d
at 920. Petitioner has further failed to keep the Court
apprised of his current address. See Court Docket Nos. 18 and
After a litigant has received one
explicit warning as to the consequences of failing to timely
comply with an order of a Magistrate Judge, and has failed to
respond to that order, the district court may, under
Fed.R.Civ.P. 41(b), dismiss the complaint based upon the
litigant's failure to comply with that court order.
SeeSimpson v. Welch. 900 F.2d 33, 35-36
(4th Cir. 1990); see also Ballard. 882 F.2d at 95-96
[holding that district ...