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Carruthers v. Joyner

United States District Court, D. South Carolina

October 9, 2018

Alan Bruce Carruthers #326809, Petitioner,
v.
Aaron Joyner, Respondent.

          REPORT AND RECOMMENDATION

          Kevin F. McDonald, United States Magistrate Judge.

         The petitioner, Alan Bruce Carruthers, proceeding pro se, brings this action pursuant to 28 U.S.C. § 2241 seeking habeas corpus relief. This matter is before the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Rule 73.02(B)(2)(c), (D.S.C.) for initial screening. For the reasons that follow, the undersigned recommends that the district judge dismiss the complaint without prejudice and without service of process.

         BACKGROUND

         The petitioner is a state prisoner housed at Lee Correctional Institution in Bishopville, South Carolina. By order dated August 17, 2018, the petitioner was informed that his case was not in proper form for service, and provided with instructions for bringing the case into proper form (doc. 5). The petitioner was directed to pay the five-dollar ($5) filing fee for a habeas corpus action, or complete and return the Form AO 240 (application to proceed in forma pauperis). The petitioner was given twenty-one days from the date the order was entered, plus three (3) days for mailing to comply with the court's orders (Id. at 1). The order warned the petitioner that failure to comply with the order within the time permitted could subject this case to dismissal for failure to prosecute and failure to comply with an order of this Court under Rule 41 of the Federal Rules of Civil Procedure (Id.). The petitioner did not respond to the court's order.

         On September 10, 2018, the court entered a second proper form order. In this order, the court advised the petitioner that his case was not in proper form and once again provided instructions for bringing it into proper form (doc. 8). Specifically, the petitioner was directed to pay the five-dollar ($5) filing fee for a habeas corpus action, or complete and return the Form AO 240 (application to proceed in forma pauperis). The petitioner was given an additional twenty-one days from the date the order was entered, plus three (3) days for mailing to comply with the court's order (Id. at 1). The order warned the petitioner that failure to comply with the order within the time permitted could subject this case to dismissal. (Id.). The petitioner has not responded to this order.

         DISCUSSION

         As indicated above, the petitioner failed to comply with the court's orders of August 17 and September 10, 2018, to accomplish review and possible service of process under 28 U.S.C. § 1915. The court warned the petitioner that failure to comply with its orders would subject his case to dismissal for failure to prosecute. It is well established that a district court has authority to dismiss a case for failure to prosecute. “The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). In addition to its inherent authority, this court may also sua sponte dismiss a case for lack of prosecution under Federal Rule of Civil Procedure 41(b) (Id. at 630).

         Although a pro se litigant is not held to the same high standards as an attorney, see Hughes v. Rowe, 449 U.S. 5, 10 n. 7 (1980) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), pro se litigants must meet certain standards, including “respect for court orders without which effective judicial administration would be impossible.” Ballard v. Carlson, 882 F.2d 93, 96 (4th Cir.1989). Thus, pro se litigants are subject to the provisions of Rule 41.

         Based on the petitioner's failure to respond to the court's orders, the undersigned concludes the petitioner does not intend to pursue the above-captioned matter. Because the petitioner failed to comply with orders 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, 882 F.2d at 96 (finding the magistrate judge's explicit warning that a recommendation of dismissal would result from the petitioner'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 petitioner “failed to respond to a specific directive from the court”).

         RECOMMENDATION

         Accordingly, the undersigned recommends that this case be dismissed without prejudice for failure to prosecute and failure to comply with this court's orders pursuant to Federal Rule of Civil Procedure 41(b). The petitioner's attention is directed to the important notice of the following page.

         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 ...


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