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Peterson v. Anderson

United States District Court, D. South Carolina

February 4, 2019

Robbie Wayne Peterson, Plaintiff,
v.
MJR. Steven Anderson; SGT. George Moss; Officer David Philbeck; Joseph Camp; Cherokee County, Defendants.

          REPORT AND RECOMMENDATION

          PAIGE J. GOSSE UNITED STATES MAGISTRATE JUDGE.

         The plaintiff, who is self-represented, brought this civil rights action seeking relief pursuant to 42 U.S.C. § 1983. On September 26, 2018, the defendants filed a motion for summary judgment. (ECF No. 33.) By order of this court filed September 27, 2018, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the dismissal and summary judgment procedures and the possible consequences if he failed to respond adequately. (ECF No. 35.)

         Notwithstanding the specific warning and instructions set forth in the court's Roseboro order, the plaintiff failed to respond to the motion. As the plaintiff is proceeding pro se, the court filed a second order on November 6, 2018, advising the plaintiff that it appeared to the court that he was not opposing the motion and wished to abandon this action, and giving the plaintiff an additional fourteen (14) days in which to file his response to the defendants' motion for summary judgment. (ECF No. 38.) The plaintiff was specifically warned that if he failed to respond, this action would be recommended for dismissal with prejudice for failure to prosecute. See Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978); Fed.R.Civ.P. 41(b).

         Following issuance of this order, the court received a letter on November 19, 2018 from Catherine Boone, whose relationship to the plaintiff is unknown, informing the court that the plaintiff “wishes to continue with this case, ” but that the plaintiff was in jail and no longer at the address of record.[1] (ECF No. 40.)

         When the plaintiff filed this action, he was specifically instructed as follows:

You are ordered to always keep the Clerk of Court advised in writing . . . if your address changes for any reason, so as to assure that orders or other matters that specify deadlines for you to meet will be received by you. 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. Therefore, if you have a change of address before this case is ended, you must comply with this order by immediately advising the Clerk of Court in writing of such change of address . . . . Your failure to do so will not be excused by the court.

(Orders, ECF No. 7 at 2.) Indeed, as noted, the plaintiff has previously demonstrated that he was able to comply with this order when he notified the court on September 24, 2018 that his address had changed. However, more than two months have passed since the plaintiff's deadline to respond, and the plaintiff has not notified the court of any change in address, despite Ms. Boone's letter indicating such. Accordingly, the plaintiff has failed to comply with the courts' orders. Therefore, the plaintiff meets all of the criteria for dismissal under Chandler Leasing Corp. v. Lopez, 669 F.2d 919 (4th Cir. 1982).[2]

         RECOMMENDATION

         Accordingly, it is recommended that this action be dismissed with prejudice for lack of prosecution and failure to comply with a court order. See Davis, 588 F.2d at 70; Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (stating that magistrate judge's prior explicit warning that a recommendation of dismissal would result from the plaintiff failing to obey his order was proper grounds for the district court to dismiss the suit when the plaintiff did not comply despite the warning), cert. denied sub nom, Ballard v. Volunteers of America, 493 U.S. 1084 (1990); Fed.R.Civ.P. 41(b). In light of the court's recommendation, the court further recommends that any pending motions (ECF No. 33) be terminated.

         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 Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201

         Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 7 ...


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