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Sanders v. Herin

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

October 2, 2019

Eric Alan Sanders, on behalf of S.K. Sanders, E.A. Sanders, II, and AM Gray-Sanders, Plaintiff,
v.
Walter C. Herin, Jr.; LaNieta Carter; S.C. ODAR, South Carolina Office of Hearings Operations; Disability Determination Services, South Carolina Vocational Rehabilitation Department; H. Corn, Disability Examiner, Defendants.

          REPORT AND RECOMMENDATION

          PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE

         The plaintiff, Eric Alan Sanders, a self-represented litigant, filed this civil rights action. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). Plaintiff is proceeding in forma pauperis under 28 U.S.C. § 1915. (ECF No. 9.)

         On July 2, 2019, the court issued an order directing Plaintiff to bring this case into proper form for initial review by properly completing the documents necessary to authorize service of process. (ECF No. 9.) The order warned Plaintiff that his failure to comply with the order within the time permitted would subject his case to dismissal for failure to prosecute and for failure to comply with an order of the court under Rule 41 of the Federal Rules of Civil Procedure. (Id. at 1.) Plaintiff has failed to provide any response to the order and the time to comply with the order lapsed in July. (ECF No. 11.)

         “The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). As well as inherent authority, a court may sua sponte dismiss a case for lack of prosecution under Federal Rule of Civil Procedure 41(b). Id. at 630. The United States Court of Appeals for the Fourth Circuit has held that a court should “ascertain (1) the degree of personal responsibility of the plaintiff, (2) the amount of prejudice caused the defendant, (3) the existence of a drawn out history of deliberately proceeding in a dilatory fashion, and (4) the existence of a sanction less drastic than dismissal.” Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982) (internal quotation marks and citation omitted).

         In the instant action, Plaintiff is proceeding pro se; therefore, he is solely responsible for his refusal to comply with the court's orders. Also, Plaintiff is familiar with the court's procedures and has proven capable of complying with court orders in the other cases he has filed in this court-five cases in the past five years. Further, because Plaintiff has failed to even respond to an order of this court, it does not appear that any sanction less drastic than dismissal is available. See Ballard v. Carlson, 882 F.2d 93, 96 (4th Cir. 1989) (finding the Magistrate Judge's explicit warning that a recommendation of dismissal would result from the plaintiff's failure to obey his order gave the district court little alternative to dismissal because any other course would have placed the credibility of the court in doubt and invited abuse). Therefore, this case should be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (finding that dismissal of a suit did not constitute abuse of discretion where the plaintiff “failed to respond to a specific directive from the court”). Because the case is recommended for summary dismissal prior to service of process, it is also recommended that the case be dismissed without prejudice.

         For the foregoing reasons, it is recommended that this action be summarily dismissed without prejudice.

         Columbia, South Carolina 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
901 Richland Street
Columbia, South Carolina ...

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