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Hale v. Lott

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

January 4, 2019

Roger Hale, also known as Roger L. Hale, Plaintiff,
Leon Lott, In His Individual Capacity; Earnest Potter, IV, In His Individual Capacity; Kevin Coghlan, In His Individual Capacity; Garrett Owens, In His Individual Capacity, Defendants.



         Plaintiff Roger Hale (“Plaintiff”) is an inmate currently housed at Kirkland Correctional Institution in Columbia, South Carolina. Plaintiff brings this civil rights action pro se and in forma pauperis against Leon Lott (Sheriff of Richland County, South Carolina); Earnest Potter, IV (sergeant with the Richland County, South Carolina Sheriff's Department); Kevin Coughlan (Deputy with the Richland County, South Carolina Sheriff's Department); and Garrett Owens (Deputy with the Richland County, South Carolina Sheriff's Department). In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred to United States Magistrate Judge Paige J. Gossett for pretrial handling. This matter is now before the court for review of the Magistrate Judge's Report and Recommendation.


         Plaintiff filed this action on August 23, 2017. ECF No. 1. In his complaint, Plaintiff alleges that on December 5, 2015, he was “wrongful shot multable times by Richland Co, Sheriff Dept.” Id. at 6 (errors in original).[1] Specifically, Plaintiff asserts that he was shot in the stomach, chest, abdomen, buttocks, and leg with an M-16 rifle. Id. at 6-7. Plaintiff further asserts that he suffered “excessive property damage” to his home. Id. Plaintiff brings this action under 42 U.S.C. § 1983, asserting that Defendants violated his Eighth Amendment protection from cruel and unusual punishment.[2] Id. at 5. On September 6, 2017, the Magistrate Judge issued a proper form order, requiring Defendant to bring his complaint into the proper form by September 27, 2017. ECF No. 5. Plaintiff complied. However, starting on March 26, 2018, all documents mailed to Plaintiff were returned to the court as undeliverable.

         Defendants filed a motion for summary judgment on July 27, 2018. ECF No. 53. The Magistrate Judge also issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) on July 27, 2018, informing Plaintiff of the summary judgment procedures and directing Plaintiff to reply to Defendants' motion within 31 days. ECF No. 54. Plaintiff did not reply.

         On August 31, 2018, the Magistrate Judge issued a Report and Recommendation, recommending that Plaintiff's complaint be dismissed with prejudice. ECF No. 60. In her Report and Recommendation, the Magistrate Judge found that Plaintiff had failed to prosecute his case, and had failed to comply with a court order. Id. at 1. The Magistrate Judge found that, pursuant to a prior written warning from the Magistrate Judge, Plaintiff was to keep the court informed, in writing, of any changes in his address. Id. at 1-2. The Magistrate Judge elaborated that failure to comply with such a warning would be a proper ground for dismissal. Id. (citing Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989). The Magistrate Judge did not address the merits of Defendants' motion for summary judgment. Id.

         On September 27, 2018, Plaintiff's address was updated. ECF No. 65. All of the documents Plaintiff did not receive were therefore re-mailed to Plaintiff on September 27, 2018. ECF No. 66. Those documents included, among others, the Magistrate Judge's Roseboro order and the Magistrate Judge's Report and Recommendation. Id. Plaintiff then filed an objection to the Magistrate Judge's Report and Recommendation on October 17, 2018. ECF No. 67. In his objection, Plaintiff states the following:

Plaintiff did not fail to abide by the Orders of the Court, either willfully or otherwise. Plaintiff respectfully submits that he was housed at the Richland County Detention Center at the time he filed this action in 2017 however, on or about February 13, 2018, Plaintiff was placed in the custody of the South Carolina Department of Corrections (“SCDC") at the Reception and Evaluation Center ("R&E") at the Kirkland Correctional Institution. Plaintiff, as soon as he could gain access to a mail box under the conditions of confinement, which was on Friday, February 16, 2018, some three (3) days after his arrival at the R & E Center, send a letter to the Clerk of Court for the United States District Court in which he notified the Court of his address change. . . .

Id. at 2 (errors in original). Plaintiff further argues that he did not receive any correspondence from the court until October 1, 2018. Id.


         A. Review of the Report and Recommendation

         The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight and the responsibility for making a final determination remains with the court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The court reviews de novo only those portions of a Magistrate Judge's Report and Recommendation to which specific objections are filed and reviews those portions which are not objected to - including those portions to which only “general and conclusory” objections have been made - for clear error. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983); Opriano v. Johnson, 687 F.2d 44, 77 (4th Cir. 1982). The court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).

         B. Dismissal

         Federal Rule of Civil Procedure 41(b) states that “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” Dismissing an action for failure to prosecute is a harsh sanction. Arnold v. Lowe's Home Improvement, LLC., C/A No. 4:08-cv-2617-RBH, 2009 WL 3151862 at *2 (D.S.C. Sept. 24, 2009); see also Reizakis v. Loy, 490 F.2d 1132, 1135 (4th Cir. 1974)(holding ...

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