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Davis v. Gleeson Constructors and Engineers LLC

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

July 1, 2019

Johnny Davis, Plaintiff,
v.
Gleeson Constructors and Engineers, LLC, Defendant.

          REPORT OF MAGISTRATE JUDGE

          Kevin F. McDonald United States Magistrate Judge.

         This matter is before the court on the defendant's motion for summary judgment (doc. 22). Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A), and Local Civil Rule 73.02(B)(2)(g) (D.S.C.), all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.

         On October 18, 2018, the defendant removed this case to federal court (doc. 1). On January 29, 2019, the plaintiff's attorney's motion to withdraw was granted, and the case was stayed for 30 days in order to afford the plaintiff the opportunity to hire substitute counsel (doc. 18). The undersigned directed that if no attorney had entered an appearance on behalf of the plaintiff by February 28, 2019, the undersigned would assume that the plaintiff was representing himself, and the case would proceed under the current scheduling order (id.). To date, no attorney has filed an appearance on behalf of the plaintiff.

         On April 22, 2019, the defendant filed a motion for summary judgment (doc. 22). By order filed April 23, 2019, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the summary judgment procedure and the possible consequences if he failed to respond adequately to the defendant's motion (doc. 24). The plaintiff did not timely respond. As the plaintiff is proceeding pro se, the court filed a second order on June 4, 2019, giving the plaintiff through June 24, 2019, in which to file his response to the motion for summary judgment (doc. 29). The plaintiff was again specifically advised that, if he failed to respond, this action would be dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

         On June 14, 2019, the plaintiff sent a letter to the Clerk of Court in which he referenced settlement negotiations between his former lawyer and the defendant (doc. 31). On that same date, the undersigned issued a text order advising the plaintiff that the court plays no part in any such negotiations (doc. 32). The undersigned reminded the plaintiff that the deadline for his response to the defendant's motion for summary judgment was June 24, 2019, as previously ordered, and that failure to timely file a response may result in the dismissal of this action (id.). The plaintiff has failed to file any response to the motion for summary judgment.

         Based upon the foregoing, the undersigned recommends that this matter be dismissed for failure to prosecute. A complaint may be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989). In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:

(1) the degree of personal responsibility on the part of the plaintiff;
(2) the amount of prejudice to the defendant caused by the delay;
(3) the history of the plaintiff in proceeding in a dilatory manner; and,
(4) the existence of less drastic sanctions other than dismissal.

Davis v. Williams, 88 F.2d 69, 70 (4th Cir.1978) (citation omitted).

         In the present case, the plaintiff is proceeding pro se, and he is thus entirely responsible for his actions. Meanwhile, the defendant is left to wonder when the action against it will be resolved. Accordingly, the undersigned concludes the plaintiff has abandoned his lawsuit. No. other reasonable sanctions are available.

         Based on the foregoing, it appears the plaintiff no longer wishes to pursue this action. Accordingly, it is recommended that the district court dismiss this action for lack of prosecution pursuant to Rule 41(b). The Clerk of Court is directed to mail the plaintiff a copy of this report at the last address he provided to the court, the detention center ...


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