United States District Court, D. South Carolina, Rock Hill Division
Timothy M. Cain United States District Judge.
17, 2018, Plaintiff Hilton Hayes, proceeding pro se,
brought this action under 42 U.S.C. § 1983, asserting
federal claims for deliberate indifference to his medical
needs and state law claims for negligence and gross
negligence in the provision of medical care. (ECF No. 1). The
case was referred to a magistrate judge for all pretrial
proceedings pursuant to 28 U.S.C. § 636(b)(1) and Local
Civil Rule 73.02(B)(2)(e) (D.S.C.).
time Plaintiff filed this action, he was an inmate at Wateree
River Correctional Institution (“WRCI”). (ECF No.
1 at 2). By orders dated July 30, 2018; August 29, 2018; and
September 13, 2018, the magistrate judge directed Plaintiff
to notify the court immediately in writing of any changes to
his mailing address. (ECF Nos. 7 at 3, 12 at 2, 17 at 3). By
each of these orders, the magistrate judge further warned the
Plaintiff that his “case may be dismissed for violating
this order.” Id. Each of these orders was
mailed to Plaintiff at WRCI and were not returned as
undeliverable. (ECF Nos. 8, 13, 18).
December 2, 2018, Defendants Stroud, Ragin, and Emetu filed a
motion for summary judgment. (ECF No. 44). On December 3,
2018, the magistrate judge issued an order pursuant to
Roseboro v. Garrison, 528 F.2d 309 (1975), advising
Plaintiff of the summary judgment process and the possible
consequences- including dismissal of his action-if he failed
to submit an adequate or timely response to Defendants'
motion. (ECF No. 45). Also, on December 3, the clerk's
office mailed the Roseboro order to Plaintiff at
WRCI (ECF No. 46).
December 21, 2018, Defendant Hughes also filed a motion for
summary judgment. (ECF No. 48). On December 26, 2018, the
clerk's office mailed a second Roseboro order to
Plaintiff at the WRCI address he had provided. (ECF No. 51).
On January 8, 2019, the Roseboro order was returned
as undeliverable. (ECF No. 53).
January 11, 2019, the magistrate judge issued a Report and
Recommendation (the “Report”) (ECF No. 55),
concluding that Plaintiff had failed to comply with the
multiple orders directing him to immediately advise the Clerk
of Court of a change in address and that the case met the
criteria for dismissal under Chandler Leasing Corp. v.
Lopez, 669 F.2d 919 (4th Cir. 1982). (ECF No. 55 at 2).
The Report therefore recommended that the court dismiss
Plaintiff's action with prejudice for lack of prosecution
and failure to comply with a court order and terminate the
pending summary judgment motions. Id. The Report
also advised Plaintiff of his right to file objections.
Id. at 3. On January 11, 2019, the Report was mailed
to Plaintiff at the WRCI address he had provided, (ECF No.
56), but it was again returned as undeliverable. (ECF No.
January 25, 2019, Plaintiff provided written notice to the
clerk of court of a change in address to 4554 Richburg Rd.,
Richburg, SC, 20729. (ECF No. 59). The clerk then mailed
another copy of the Report to Plaintiff's updated
Richburg address. (ECF No. 60). The court granted Plaintiff
an extension of time to file objections to the Report. (ECF
No. 63). On February 14, 2019, however, the Report was again
returned as undeliverable to Plaintiff's Richburg
address. (ECF No. 66).
Plaintiff obtained a copy of the Report by retrieving it in
person from the clerk's office on February 6, 2019. (ECF
No. 65). On February 20, 2019, Plaintiff filed objections to
the Report in which he simply repeated the factual
allegations he made in his complaint. (ECF No. 67). At the
time he filed his objections, Plaintiff also requested
certain copies of documents from the Clerk of Court (ECF No.
68); however, the clerk's written response to this
request was again returned as not deliverable to the Richburg
address provided by Plaintiff. (ECF No. 71).
on July 3, 2019, the court issued an order recounting
Plaintiff's continued failure during the pendency of this
action to keep the court apprised of his current mailing
address and directing Plaintiff to provide, in writing, a
current and valid mailing address within fifteen days of the
date of the order. (ECF No. 74). The court warned Plaintiff
that his failure to do so would result in the dismissal of
his action for failure to comply with a court order pursuant
to Rule 41(b) of the Federal Rules of Civil Procedure.
clerk of court mailed the July 3, 2019, order to
Plaintiff's Richburg address-the most recent address
provided to the court by Plaintiff. (ECF No. 75). On July 8,
2019, the order was once again returned as undeliverable to
Plaintiff at the Richburg address; the envelope, however,
indicated that the “forward time” had expired for
“4425 Saluda Rd., Rock Hill, SC, 29730.” (ECF No.
77). The clerk immediately mailed another copy of the July 3,
2019, order to the Rock Hill address. (ECF No. 79). On July
18, 2019, the order was returned from the Rock Hill address
as “undeliverable/forward time expired” with the
Richburg address listed as the forwarding address. (ECF No.
recommendations set forth in the Report have no presumptive
weight, and this court remains responsible for making a final
determination in this matter. See Matthews v. Weber,
423 U.S. 261, 270-71 (1976). The court is charged with making
a de novo determination of those portions of the
Report to which a specific objection is made, and the court
may accept, reject, modify, in whole or in part, the
recommendation of the magistrate judge or recommit the matter
with instructions. 28 U.S.C. § 636(b)(1). However, the
court need not conduct a de novo review when a party
makes only “general and conclusory objections that do
not direct the court to a specific error in the
magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of a timely filed,
specific objection, the magistrate judge's conclusions
are reviewed only for clear error. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005).
Plaintiff filed objections to the Report (ECF No. 67), those
objections merely restate the factual allegations and legal
conclusions set forth in his complaint, and they fail to
address any specific, dispositive portion of the Report. The
court has thoroughly reviewed the Report and the docket
entries in this case and finds no reason to deviate from the
Report's recommendation that this action be dismissed for
lack of prosecution and that the pending motions be
terminated. See Fair v. Alvin S. Glenn Det. Ctr.,
No. 5:17-cv-976-TMC, 2017 WL 6270625, at *1 (D.S.C. Dec. 7,
2017) (adopting recommendation to dismiss action for lack of
prosecution and for failure to comply with this court's
orders where “all mail sent to Plaintiff has been
returned as ‘undeliverable'”); Fed.R.Civ.P.
date, Plaintiff has not responded to the court's order
directing him to provide, in writing, a current and valid
mailing address. (ECF No. 74). Indeed, since filing his
objections, Plaintiff's mail has been returned as
undeliverable on at least three occasions, (ECF Nos. 71, 77,
80), as a result of his continued failure to comply with the
court's directive that a valid, updated mailing address
be provided. The court concludes that it is appropriate to
dismiss the action but that the dismissal should be without
prejudice. See Fair, 2017 WL 6270625, at *2.
as set forth above, the court adopts in part the Report of
the magistrate judge (ECF No. 55) as modified and
incorporates it herein except to the extent it recommends
dismissal with prejudice. It is therefore
ORDERED that Plaintiff's action be
DISMISSED without prejudice for lack of
prosecution and for failure to comply with this court's
orders, pursuant to Rule 41(b) of ...