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Hancock v. Shuttles

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

June 13, 2019

David Mills Hancock, #303839, Plaintiff,
v.
Shelly Shuttles, et al, Defendants.

          REPORT AND RECOMMENDATION

          MARY GORDON BAKER UNITED STATES DISTRICT JUDGE.

         This 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.)

         In an 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.

         Accordingly, 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 recommendation:

         Plaintiff 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).

         IT IS SO RECOMMENDED.

         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 Post Office Box 835 Charleston, South Carolina 29402

         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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