United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
J. GOSSE UNITED STATES MAGISTRATE JUDGE.
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.)
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).
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. (ECF No. 40.)
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).
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.
of Right to File Objections to Report and
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
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
Robin L. Blume, Clerk United States District Court 901
Richland Street Columbia, South Carolina 29201
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 ...