United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION
GORDON BAKER UNITED STATES DISTRICT JUDGE.
action has been filed by Plaintiff, pro se and
in forma pauperis, pursuant to 42 U.S.C. §
1983, alleging a violation of his constitutional rights. On
February 12, 2019, Defendant Lt. Hettich filed a Motion for
Summary Judgment. (Dkt. No. 51.) On February 26, 2019, the
remaining Defendants filed a Motion for Summary Judgment.
(Dkt. No. 54.) On February 13, 2019 and February 27, 2019,
this Court issued Orders pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), advising
Plaintiff of the dismissal procedure and the possible
consequences if he failed to adequately respond to the
motions. (Dkt. Nos. 52; 55.) However, those Orders were
returned as undeliverable on March 12, 2019, because
Plaintiff's address had apparently changed. (Dkt. No.
59.) After locating Plaintiff on the SCDC Inmate Locator
website, the Court resent the Roseboro Orders to
Plaintiff's current address and also sent Plaintiff an
Address Update Form. (Dkt. No. 61.)
abundance of caution, the Court issued an Amended Roseboro
Order for the pending dispositive motions on March 26, 2019.
(Dkt. No. 62.) In the Amended Roseboro Order, Plaintiff was
ordered to always keep the Clerk of Court advised in writing
of his address changes for any reason, so as to assure that
orders or other matters that specify deadlines for Plaintiff
to meet will be received by him. (Id.)
Plaintiff's response to the pending dispositive motions
was due by April 16, 2019. Plaintiff failed to file any
responses to the motions or provide any change of address
form. On April 23, 2019, the Court issued an Order extending
the deadline for Plaintiff to file responses to the motions
by May 13, 2019. (Dkt. No. 66.) Plaintiff still failed to
file any response or submit a change of address form.
on May 17, 2019, the undersigned issued a Report and
Recommendation (“R&R”), recommending this
action be dismissed with prejudice for lack of prosecution
and for failure to comply with the Court's orders. (Dkt.
No. 68.) Plaintiff did not file any objections to the
R&R. However, the R&R inadvertently did not include
the notice of right to file objections. The Court therefore
rescinds the May 17, 2019 R&R and issues the following
has still failed to file any response to the pending
dispositive motions or submit a change of address form. Based
on the foregoing, it appears the Plaintiff no longer wishes
to pursue this action. Accordingly, it is recommended that
this action be dismissed with prejudice for lack of
prosecution and for failure to comply with this Court's
orders, pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure and the factors outlined in Chandler Leasing
Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982).
See Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989).
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 committee's note).
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 Post
Office Box 835 Charleston, South Carolina 29402
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,