United States District Court, D. South Carolina
REPORT AND RECOMMENDATION OF MAGISTRATE
JACQUELYN D. AUSTIN UNITED STATES MAGISTRATE JUDGE
brought this action seeking relief pursuant to 42 U.S.C.
§ 1983. [Doc. 1.] On February 28, 2019, the Court issued
an Order directing Plaintiff to bring the case into proper
form and advising Plaintiff of his duty to keep the Court
informed of his current address. [Doc. 5.] On April 5, 2019,
the Court authorized service of process on Defendant. [Doc.
18.] On July 12, 2019, Defendant filed a motion for summary
judgment. [Doc. 46.] By Order of this Court filed on July 15,
2019, pursuant to Roseboro v. Garrison, 528 F.2d 309
(4th Cir. 1975), Plaintiff was advised of the summary
judgment/dismissal procedure and the possible consequences if
he failed to respond adequately to the motion. [Doc. 48.]
Despite this explanation regarding the consequences for
failing to respond, Plaintiff failed to respond to the motion
for summary judgmennt.
Plaintiff is proceeding pro se, the Court filed an Order on
August 29, 2019, giving Plaintiff through September 18, 2019,
to respond to the motion for summary judgment. [Doc. 58.]
Plaintiff was advised that if he failed to respond, this
action would be dismissed for failure to prosecute.
[Id.] On September 12, 2019, the Court's August
29, 2019, Order was returned to the Court as undeliverable,
marked “Return to Sender/Not Deliverable as
Addressed/Unable to Forward.” [Doc. 61.] As of the date
of this Order, Plaintiff has failed to advise the Court of
any change in his address, nor has he responded to the
summary judgment motion.
on the foregoing, it appears Plaintiff no longer wishes to
pursue this action. “The Federal Rules of Civil
Procedure recognize that courts must have the authority to
control litigation before them, and this authority includes
the power to order dismissal of an action for failure to
comply with court orders.” Ballard v. Carlson,
882 F.2d 93, 95 (4th Cir. 1989) (citing Fed.R.Civ.P. 41(b)).
“Federal courts possess an inherent authority to
dismiss cases with prejudice sua sponte.” Gantt v.
Md. Div. of Corr., 894 F.Supp. 226, 229 (D. Md. 1995)
(citing Link v. Wabash R.R. Co., 370 U.S. 626
(1962); White v. Raymark Indus., Inc., 783 F.2d 1175
(4th Cir. 1986); Zaczek v. Fauquier Cty., Va., 764
F.Supp. 1071, 1074 (E.D. Va.1991)).
Fourth Circuit, in Davis v. Williams, recognizing
that dismissal with prejudice is a harsh sanction that should
not be invoked lightly, set forth four factors for
determining whether Rule 41(b) dismissal is appropriate:
(1) the degree of personal responsibility on the part of the
(2) the amount of prejudice to the defendant caused by the
(3) the presence or absence of a drawn out history of
deliberately proceeding in a dilatory fashion; and
(4) the effectiveness of sanctions less drastic than
588 F.2d 69, 70 (4th Cir. 1978) (citing McCargo v.
Hedrick, 545 F.2d 393, 396 (4th Cir. 1976)).
Subsequently, however, the Fourth Circuit noted that
“the four factors . . . are not a rigid four-pronged
test, ” and whether to dismiss depends on the
particular circumstances of the case. Ballard, 882
F.2d at 95. For example, in Ballard, the court
reasoned that “the Magistrate's explicit warning
that a recommendation of dismissal would result from failure
to obey his order is a critical fact that distinguishes this
case from those cited by appellant. . . . In view of the
warning, the district court had little alternative to
dismissal. Any other course would have placed the credibility
of the court in doubt and invited abuse.” Id.
Plaintiff is proceeding pro se, he is personally responsible
for his failure to advise the Court of his current address.
The Court specifically warned Plaintiff the case would be
subject to dismissal if he failed to update his address and
thereby failed to meet a Court deadline. [Doc. 5 at 3.]
Plaintiff is also personally responsible for his failure to
file a response to the motion for summary judgment. Plaintiff
has had over two months to respond to the motion.
Plaintiff's initial response was due by August 15, 2019;
despite being advised of the possible consequences if he
failed to adequately respond, Plaintiff elected not to
respond to the motion. The Court extended Plaintiff's
deadline to respond until September 18, 2019, and attempted
to warn Plaintiff that the case would be dismissed pursuant
to Rule 41(b) if Plaintiff failed to file a response.
However, because Plaintiff elected not to update his address,
he did not receive the Court's final warning.
Nevertheless, Plaintiff has not responded to the motion.
Because Plaintiff has already ignored Court Orders and
deadlines, sanctions less drastic than dismissal would not be
based upon the foregoing, the Court recommends that the case
be DISMISSED pursuant to Federal Rule of Civil Procedure