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Brady v. Vereen

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

August 7, 2019

DENNIS ROBERT BRADY, Petitioner,
v.
ACTING WARDEN W. VEREEN, Respondent.

          REPORT AND RECOMMENDATION

          THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE.

         The Petitioner, Dennis Robert Brady (“Petitioner/ Brady”), appearing pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241[1] on April 4, 2019. On May 30, 2019, the Respondent filed a motion to dismiss along with a return and memorandum. (ECF Nos. 12 and 13). The undersigned issued an order filed May 30, 2019, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), advising the Petitioner of the motion and the possible consequences if he failed to respond adequately. (ECF No. 14). Petitioner failed to file a response.

         RULE 41(B) DISMISSAL

         A complaint may be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989), cert. denied, 493 U.S. 1084 (1990), and Chandler Leasing Corp. v. Lopez, 669 F.2d 919 (4th Cir. 1982). In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:

(1) the degree of plaintiff's responsibility in failing to respond;
(2) the amount of prejudice to the defendant;
(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, 588 F.2d 69 (4th Cir. 1978).

         In the present case, the Petitioner is proceeding pro se so he is entirely responsible for his actions. It is solely through Petitioner's neglect, and not that of an attorney, that no responses have been filed. Petitioner has not responded to Respondent's Motion to Dismiss or the court's order requiring him to respond. No. other reasonable sanctions are available. Accordingly, it is recommended that this action be dismissed pursuant to Fed. R. Civ. Proc. 41(b).

         In the alternative, the Motion to Dismiss will be addressed below.

         PROCEDURAL AND FACTUAL BACKGROUND

         Brady is currently incarcerated at the Federal Correctional Institution Edgefield, South Carolina (FCI Edgefield). Brady filed this petition seeking relief pursuant to 28 U.S.C. § 2241. Specifically, he filed this action challenging an administrative disciplinary action he received while incarcerated at FCI Edgefield. Brady filed the petition identifying the incident report number as 3167060 and arguing that the finding of guilt was erroneous. In the petition, Brady seeks to have the court “. . . compel the Bureau of Prisons expunge the incident report and the disciplinary hearing findings from my prison record; including the restoration of any and all good time credit days (41 days), and order that my custody points be re-scored that I may progress through the BOP system on schedule. I would also like to be returned to the facility I was in (Fort Dix).” (ECF No. 1).

         In the Motion to Dismiss, Respondent argues that this petition must be dismissed as it is moot because the disciplinary action has been expunged by the Bureau of Prisons and Petitioner's good conduct time ...


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