United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Bristow Marchant United States Magistrate Judge.
pro se Petitioner brought this action seeking relief
pursuant to Title 28, United States Code, Section 2254. On
June 7, 2019, the Respondent filed a motion for summary
judgment.As the Petitioner is proceeding pro
se, a Roseboro Order was entered by the Court
on June 10, 2019, advising Petitioner of the importance of a
dispositive motion and of the need for him to file an
adequate response. Petitioner was specifically advised that
if he failed to file a properly supported response, the
Respondent's motion may be granted, thereby ending his
has filed two (2) requests for extensions of time to respond,
both of which were granted by Orders filed July 10, 2019, and
September 11, 2019, respectively. However, notwithstanding
the extensions granted and the specific warning and
instructions as set forth in the Court's
Roseboro order, the Petitioner has failed to ever
respond to the Respondent's motion, or to further contact
the Court in any way. Based on the foregoing, the undersigned
finds that Petitioner meets all of the criteria for dismissal
under Chandler Leasing Corp. v. Lopez, 669 F.2d 919,
920 (4thCir. 1982). Accordingly, it is recommended
that this action be dismissed for lack of prosecution.
See Davis v. Williams, 588 F.2d 69, 70 (4th Cir.
1978); Rule 41(b), Fed.R.Civ.P. However, in light of
Petitioner's pro se status and the fact that
this is a habeas petition, it is further recommended that the
dismissal be without prejudice.
Clerk shall mail this Report and Recommendation to Petitioner
at his last known address. If the Petitioner notifies the
Court within the time set forth for filing objections to this
Report and Recommendation that he wishes to continue with
this case and provides a response to the motion for summary
judgment, the Clerk is directed to vacate this Report and
Recommendation and return this file to the undersigned for
further handling. If, however, no objections are
filed, the Clerk shall forward this Report and Recommendation
to the District Judge for disposition. Ballard v.
Carlson, 882 F.2d 93, 95 (4th Cir. 1989),
cert denied sub nom, Ballard v. Volunteers of
America, 493 U.S. 1084 (1990) [Magistrate Judge's
prior explicit warning that a recommendation of dismissal
would result from plaintiff failing to obey his order was
proper grounds for the district court to dismiss suit when
plaintiff did not comply despite warning] .
parties are referred to the Notice Page attached hereto.
of Right to File Objections to Report and
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).
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
Robin L. Blume, Clerk United States District Court Post
Office Box 835 Charleston, South Carolina 29402
to timely file specific written objections to this Report and
Recommendation will result in waiver of the right to appeal
from a judgment of the District Court based upon such
Recommendation. 28 U.S.C. § 636(b)(1);
Thomas v. Arn, 474 U.S. 140 (1985); Wright v.
Collins, 766 F.2d 841 (4th Cir. 1985); United States
v. Schronce, 727 F.2d 91 (4th Cir. 1984).
Respondent's motion noted,
inter alia, that Petitioner had a filed
state post-conviction relief petition (APCR) that was still
pending. Dunbar v. State, C.A. No.
He is personally responsible for
proceeding in a dilatory fashion, the Respondent is suffering
prejudice due to having to expend time and resources on a
case in which the Petitioner is unresponsive, and no
sanctions other than dismissal appear to exist as the
Petitioner is indigent (and therefore not subject to monetary
sanctions) and he has otherwise failed to respond to ...