United States District Court, D. South Carolina, Florence Division
REPORT AND RECOMMENDATION
E. ROGERS, III UNITED STATES MAGISTRATE JUDGE.
who is proceeding pro se, brings this action alleging that
Defendants violated his constitutional rights. Presently
before the court are Defendants' Motions for Summary
Judgment (ECF Nos. 56 and 62). Because Plaintiff is
proceeding pro se, he was advised on August 12, 2019, and
August 26, 2019, pursuant to Roseboro v. Garrison,
528 F.3d 309 (4th Cir. 1975), that a failure to respond to
the motions could result in dismissal of his case. A response
to Defendant Chavis's Motion for Summary Judgment was due
by September 12, 2019, add an additional three days if served
by mail, and a response to Defendant Specht's Motion for
Summary Judgment by September 26, 2019, add an additional
three days if served by mail. Plaintiff failed to file a
response to either motion. All pretrial proceedings in this
case were referred to the undersigned pursuant to the
provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local
Rule 73.02(B)(2)(e), DSC. This report and recommendation is
entered for review by the district judge.
RULE 41(b) DISMISSAL
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. Fed.R.Civ.P.
41(b).” Ballard v. Carlson, 882 F.2d 93, 95
Fourth Circuit, in Davis v. Williams, 588 F.2d 69,
70 (4th Cir. 1978), recognizing that dismissal with prejudice
is a harsh sanction which should not be invoked lightly, set
forth four considerations in determining whether Rule 41(b)
dismissal is appropriate: (1) the degree of personal
responsibility on the part of the plaintiff; (2) the amount
of prejudice to the defendant caused by the delay; (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 dismissal. Id. at 70.
however, the Fourth Circuit noted that “the four
factors ... are not a rigid four-pronged test.”
Ballard, 882 F.2d at 95. “Here, we think 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. at 95-96.
present case, Plaintiff is proceeding pro se and, thus, is
entirely responsible for his actions. It is solely through
Plaintiff's neglect, and not that of an attorney, that
Plaintiff has failed to respond to the Motions for Summary
Judgment despite the court's warnings that a failure to
do so may result in dismissal. Accordingly, the undersigned
concludes that Plaintiff has abandoned his claims against
alternative, the motions for summary judgment are discussed
STANDARD FOR SUMMARY JUDGMENT
federal court is charged with liberally construing the
complaints filed by pro s e litigants, to allow them
to fully develop potentially meritorious cases. See C r u
z v. Beto, 405 U.S. 319 (1972); Haines v.
Kerner, 404 U.S. 519 (1972). The court's function,
however, is not to decide issues of fact, but to decide
whether there is an issue of fact to be tried. The
requirement of liberal construction does not mean that the
court can ignore a clear failure in the pleadings to allege
facts which set forth a federal claim, Weller v.
Dep't of Social Servs., 901 F.2d 387 (4th Cir.
1990), nor can the court assume the existence of a genuine
issue of material fact where none exists. If none can be
shown, the motion should be granted. Fed.R.Civ.P. 56(c).
moving party bears the burden of showing that summary
judgment is proper. Summary judgment is proper if there is no
genuine dispute of material fact and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Summary judgment is proper if the non-moving party fails to
establish an essential element of any cause of action upon
which the non-moving party has the burden of proof.
Celotex, 477 U.S. 317. Once the moving party has
brought into question whether there is a genuine dispute for
trial on a material element of the non-moving party's
claims, the non-moving party bears the burden of coming
forward with specific facts which show a genuine dispute for
trial. Fed.R.Civ.P. 56(e); Matsushita Electrical
Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574
(1986). The non-moving party must come forward with enough
evidence, beyond a mere scintilla, upon which the fact finder
could reasonably find for it. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). The facts and
inferences to be drawn therefrom must be viewed in the light
most favorable to the non-moving party. Shealy v.
Winston, 929 F.2d 1009, 1011 (4th Cir. 1991).
However, the non-moving party may not rely on beliefs,
conjecture, speculation, or conclusory allegations to defeat
a motion for summary judgment. Barber v. Hosp. Corp. of
Am., 977 F.2d 874-75 (4th Cir. 1992). The
evidence relied on must meet “the substantive
evidentiary standard of proof that would apply at a trial on
the merits.” Mitchell v. Data General Corp.,
12 F.3d 1310, 1316 (4th Cir. 1993).
that a genuine dispute of material fact exists, a party may
not rest upon the mere allegations or denials of his
pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e)
permits a proper summary judgment motion to be opposed by any
of the kinds of evidentiary materials listed in Rule 56(c),
except the mere pleadings themselves). Rather, the party must
present evidence supporting his or her position through
“depositions, answers to interrogatories, and
admissions on file, together with ... affidavits, if
any.” Id. at 322; see also Cray
Communications, Inc. v. Novatel Computer Systems, Inc.,
33 F.3d 390 (4th Cir. 1994); Orsi v.
Kickwood, 999 F.2d 86 (4th Cir. 1993); Local
Rules 7.04, 7.05, D.S.C.