United States District Court, D. South Carolina, Spartanburg Division
REPORT OF MAGISTRATE JUDGE
F. McDonald United States Magistrate Judge.
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.
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.
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
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.
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
(2) the amount of prejudice to the defendant caused by the
(3) the history of the plaintiff in proceeding in a dilatory
(4) the existence of less drastic sanctions other than
Davis v. Williams, 88 F.2d 69, 70 (4th Cir.1978)
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.
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