United States District Court, D. South Carolina, Anderson/Greenwood Division
REPORT AND RECOMMENDATION OF MAGISTRATE
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE.
brought this action seeking relief pursuant to 42 U.S.C.
§ 1983. [Doc. 1.] On November 6, 2018, Defendants Dr.
Andrew Hedgepath and Meagan Hill filed a motion for summary
judgment. [Doc. 21.] By Order of this Court on the same day,
pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975), Plaintiff was advised of the summary
judgment/dismissal procedure and the possible consequences if
he failed to respond adequately to the motion. [Doc. 22.]
Despite this explanation regarding the consequences for
failing to respond, Plaintiff failed to respond to the motion
for summary judgmennt.
Plaintiff is proceeding pro se, the Court filed an Order on
December 14, 2018, giving Plaintiff through January 3, 2019,
to respond to the motion for summary judgment. [Doc. 24.]
Plaintiff was specifically advised that if he failed to
respond, this action would be dismissed for failure to
prosecute. [Id.] However, Plaintiff has failed to
respond to the motion.
on the foregoing, it appears Plaintiff no longer wishes to
pursue this action. “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.” Ballard v. Carlson,
882 F.2d 93, 95 (4th Cir. 1989) (citing Fed.R.Civ.P. 41(b)).
“Federal courts possess an inherent authority to
dismiss cases with prejudice sua sponte.” Gantt v.
Md. Div. of Corr., 894 F.Supp. 226, 229 (D. Md. 1995)
(citing Link v. Wabash R.R. Co., 370 U.S. 626
(1962); White v. Raymark Indus., Inc., 783 F.2d 1175
(4th Cir. 1986); Zaczek v. Fauquier Cty., Va., 764
F.Supp. 1071, 1074 (E.D. Va.1991)).
Fourth Circuit, in Davis v. Williams, recognizing
that dismissal with prejudice is a harsh sanction that should
not be invoked lightly, set forth four factors for
determining whether Rule 41(b) dismissal is appropriate:
(1) the degree of personal responsibility on the part of the
(2) the amount of prejudice to the defendant caused by the
(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
588 F.2d 69, 70 (4th Cir. 1978) (citing McCargo v.
Hedrick, 545 F.2d 393, 396 (4th Cir. 1976)).
Subsequently, however, the Fourth Circuit noted that
“the four factors . . . are not a rigid four-pronged
test, ” and whether to dismiss depends on the
particular circumstances of the case. Ballard, 882
F.2d at 95. For example, in Ballard, the court
reasoned that “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.
Plaintiff is proceeding pro se, he is personally responsible
for his failure to file a response to the motion for summary
judgment. Plaintiff has had over two months to respond to the
motion. Plaintiff's initial response was due by December
7, 2018; despite being advised of the possible consequences
if he failed to adequately respond, Plaintiff elected not to
respond to the motion. The Court filed another Order,
reminding Plaintiff that a response was due and giving him
additional time-until January 3, 2019-to respond. The Court
has warned Plaintiff the case would be dismissed pursuant to
Rule 41(b) if Plaintiff failed to file a response. Despite
this explanation, Plaintiff has elected not to respond.
Because Plaintiff has already ignored Court Orders and
deadlines, sanctions less drastic than dismissal would not be
based upon the foregoing, the Court recommends that the case
be DISMISSED pursuant to Federal Rule of Civil Procedure