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Strickland v. Spartanburg County Sheriffs Office

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

August 17, 2018

Cale Marcus Strickland, Plaintiff,
v.
Spartanburg County Sheriff's Office, Sgt Atkins, Sgt. Piccole, Sgt. Bleu, Lt. Wilson, Lt. Sinner, and Officer Campbell, Defendant.

          REPORT OF MAGISTRATE JUDGE

          KEVIN F. MCDONALD UNITED STATES MAGISTRATE JUDGE

         The plaintiff, proceeding pro se, seeks relief pursuant to Title 42, United States Code Section, Section 1983. Pursuant to the provisions of Title 28, United States Code, Section, 636(b)(1)(B) and Local Rule 73.02(B)(2)(d)(D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under Title, 42 United States Code, Section 1983 and submit findings and recommendations to the district court.

         BACKGROUND

         The plaintiff alleges that from April 22 through June 12, 2018, while imprisoned in the Spartanburg County Detention Facility he was forced to take showers, was maced and tasered, and was denied appropriate hygiene, clothing, and bedding (doc. 1 at 6). The plaintiff seeks damages for his wrongful incarceration, forced showers, mace assaults, and no blanket (id. at 7).

         By order filed on June 28, 2018, the plaintiff was informed that his case was not in proper form for service, and was provided with instructions for bringing the case into proper form (doc. 8). The court directed the plaintiff to provide service documents and complete and sign a complaint form. The order warned the plaintiff that his failure to comply with the order within the time permitted may subject his case to dismissal for failure to prosecute and for failure to comply with an order of the court under Rule 41 of the Federal Rules of Civil Procedure (Id. at 1). The plaintiff's proper form documents were due July 23, 2018. On July 13, 2018, the plaintiff filed motions for discovery (docs. 10 and 11), which were denied as premature on July 25, 2018 (doc. 13).

         On July 25, 2018, the court issued a second proper form order (doc. 15) directing the plaintiff to provide the service documents previously requested and to fully complete a complaint form (Id. at 1). Once more, the order warned the plaintiff that his failure to comply with the order within the time permitted may subject his case to dismissal for failure to comply with an order of the court (Id. at 1). The plaintiff has not responded to this order.

         DISCUSSION

         As indicated above, the plaintiff failed to comply with the court's orders and failed to provide necessary information and paperwork to accomplish review and possible service of process under 28 U.S.C. § 1915. The court warned the plaintiff that failure to comply with its July 25, 2018, order would subject his case to dismissal. Rather than comply with the court's instructions to bring his case into proper form and cure the deficiencies outlined by this court, the plaintiff filed motions for discovery. Because the plaintiff failed to fully comply with an order of this court after being warned that his failure to comply would result in dismissal, it does not appear that any sanction less drastic than dismissal is available. See Ballard v. Carlson, 882 F.2d 93, 96 (4th Cir. 1989) (finding the magistrate judge's explicit warning that a recommendation of dismissal would result from the plaintiff's failure to obey his order gave the district court little alternative to dismissal). As such, this case should be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See Ballard, 882 F.2d at 95 (finding that dismissal of a suit did not constitute abuse of discretion where the plaintiff “failed to respond to a specific directive from the court”).

         CONCLUSION

         Accordingly, the undersigned recommends that this case be dismissed without prejudice.

         IT IS SO RECOMMENDED.

         Notice of Right to File Objections to Report and Recommendation

          The 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.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

         Specific 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 ...


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