Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kiker v. Lancaster County

United States District Court, D. South Carolina

September 4, 2019

Junior Kiker, Plaintiff,
v.
Lancaster County; Barry Faile in his Individual and/or Official Capacity as Sheriff of Lancaster County; Quinton Smith, in his Individual and/or Official Capacity as Employee of Lancaster County; and Richard Plyler, in his Individual and/or Official Capacity as Employee of Lancaster County, Defendants.

          REPORT AND RECOMMENDATION

          Kaymani D. West, United States Magistrate Judge

         Junior Kiker (“Plaintiff”), now proceeding pro se, brought this action alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. On April 22, 2019, Defendants filed a Motion for Summary Judgment. ECF No. 58. On April 23, 2019, the court issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the importance of such motions and of the need for him to file an adequate response. ECF No. 59. Plaintiff was specifically advised that if he failed to respond by May 24, 2019 (plus three mailing days), Defendants' Motion may be granted, thereby ending Plaintiff's case. Id. Plaintiff did not file a response to the Motion for Summary Judgment by the May 24, 2019 deadline.

         On August 13, 2019, the court ordered Plaintiff to advise the court whether he wished to continue with his case. Plaintiff was ordered to file a response to the Motion for Summary Judgment by August 27, 2019 (plus three mailing days). ECF No. 67. Plaintiff did not respond to the court's Orders in any way and has not filed the required response.

         In light of Plaintiff s failure to respond, it appears to the court that he does not oppose Defendants' Motion for Summary Judgment and wishes to abandon this action. Based on the foregoing, the undersigned recommends that Plaintiffs action against Defendants be dismissed with prejudice for failure to prosecute. See Fed. R. Civ. P. 41(b); Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978) (noting that a court deciding whether to dismiss a case under Fed.R.Civ.P. 41(b) must balance the policy of deciding cases on their merits against “sound judicial administration.” In so doing, the court must weigh: 1) plaintiffs responsibility for failure to prosecute, 2) prejudice to defendant from delay, 3) history of delay, and 4) effectiveness of lesser sanctions.); see also Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989) (noting and applying Davis factors in dismissing case under Fed.R.Civ.P. 41(b)); Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982) (same).

         Based upon the above, and taking into account the factors in Davis, Ballard, and Chandler, the undersigned recommends this action be dismissed with prejudice for failure to prosecute pursuant to Fed. R Civ. P. 41(b).

         IT IS SO RECOMMENDED.

         The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”

         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 2317
Florence, South Carolina ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.