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Rhoden v. Smith

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

August 13, 2018

ODIS RHODEN, #199257, Plaintiff,
v.
SERGEANT SMITH and CAPTAIN POWELL, Defendants.

          REPORT AND RECOMMENDATION

          Thomas E. Rogers, III United States Magistrate Judge.

         I. INTRODUCTION

         Plaintiff, who is proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983, alleging Defendants violated his constitutional rights. Presently before the court is Defendants' Motion to Dismiss (ECF No. 48). Because Plaintiff is proceeding pro se, he was advised pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendants' motion could result in dismissal of his Complaint. Plaintiff has not filed a response. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), DSC. This report and recommendation is entered for review by the district judge.

         II. RULE 41(b) DISMISSAL

         Defendants file their motion pursuant to Fed.R.Civ.P. 41(b) for Plaintiff's failure to respond to their discovery requests served April 2, 2018, and April 24, 2018. In addition, Defendants assert that all of their mailings to Plaintiff have been returned. Likewise, both the scheduling order and the Roseboro order have been returned to the court with “Released” written on the envelope.[1] See ECF Nos. 44, 51. “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. Fed.R.Civ.P. 41(b).” Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989).

         The Fourth Circuit, in Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978), recognizing that dismissal with prejudice is a harsh sanction which should not be invoked lightly, set forth four considerations in 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. Id. at 70.

         Subsequently, however, the Fourth Circuit noted that “the four factors ... are not a rigid four-pronged test.” Ballard, 882 F.2d at 95. “Here, we think 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.

         In the present case, Plaintiff is proceeding pro se and, thus, is entirely responsible for his actions. It is solely through Plaintiff's neglect, and not that of an attorney, that Plaintiff has failed to prosecute this case. As stated above, Defendants represent that all mailings they have served on Plaintiff have been returned as undeliverable because Plaintiff has been released from the Allendale Correctional Institution. Likewise, both the Scheduling Order and the Roseboro Order entered in this case have been returned for the same reason. Plaintiff was directed in the Order (ECF No. 34) authorizing service of process to always keep the Clerk of Court advised of any address changes, and he was warned that “if as a result of your failure to comply with this Order, you fail to meet a deadline set by this Court, your case may be dismissed for violating this Order.” Plaintiff has failed to update the court or counsel for Defendants with his current address and has failed to respond discovery requests and the present Motion to Dismiss. Accordingly, the undersigned concludes that Plaintiff has abandoned his claims against Defendants. No. other conclusion is reasonable.

         III. CONCLUSION

         For the reasons discussed above, it is recommended that Defendants' Motion to Dismiss (ECF No. 48) be granted and this case be dismissed pursuant to Fed.R.Civ.P. 41(b).

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Notes:

[1]Further, an internet search reveals that Plaintiff is currently on parole under the supervision of the South Carolina Department of Probation, Parole and Pardon Services. See ...


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