United States District Court, D. South Carolina
Don Survi Chisolm, #347831, a/k/a Don-Survi Chisolm, Plaintiff,
Rhyshema Davis, Nurse DeLeon, Mr. Gore, Deputy Directory Stoley, and Chaplain Cuttino, Defendants.
Howe Hendricks United States District Judge
Don Survi Chisolm (“Plaintiff”), proceeding
pro se and in forma pauperis, filed this
action pursuant to 42 U.S.C. § 1983. In accordance with
28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2),
DSC, this matter was referred to United States Magistrate
Judge Thomas E. Rogers for pre-trial management. On September
25, 2019, the Magistrate Judge issued a Report and
Recommendation (“Report”) that the Court dismiss
the action with prejudice under Federal Rule of Civil
Procedure 41(b) for Plaintiff's failure to prosecute.
(ECF No. 61). The Magistrate Judge makes only a
recommendation to this Court. The recommendation has no
presumptive weight. The responsibility for making a final
determination remains with this Court. Mathews v.
Weber, 423 U.S. 261, 270 (1976). The Court may accept,
reject, or modify, in whole or in part, the Report and
Recommendation or may recommit the matter to the Magistrate
Judge with instructions. 28 U.S.C. § 636(b)(1).
March 15, 2019, Defendants Rhyshema Davis, Mr. Gore, Deputy
Directory Stoley and Chaplain Cuttino filed an answer to
Plaintiff's complaint. (ECF No. 29). Defendant Nurse
DeLeon did not join in the answer. On May 3, 2019, Plaintiff
moved for entry of default as to Nurse DeLeon. (ECF No. 37).
On July 24, 2019, Nurse DeLeon, through her attorneys, filed
a motion seeking leave to file an answer out of time and
attached the proposed answer to the motion. (ECF Nos. 45,
45-1). Her attorneys represented that they had inadvertently
omitted her from the answer filed on behalf of her
co-Defendants. Nurse DeLeon concurrently filed a response in
opposition to the motion for entry of default. (ECF No. 47).
Plaintiff did not file a response to the motion for leave to
file an answer out of time. Defendants meanwhile sought
extensions of time to file dispositive motions, (ECF Nos. 41,
49), and ultimately filed a motion for summary judgment on
August 12, 2019, (ECF No. 50). The Magistrate Judge issued an
order pursuant to Roseboro v. Garrison, 528 F.2d 309
(4th Cir. 1975), instructing Plaintiff as to the significance
of a dispositive motion. (ECF No. 51).
August 5, 2019, the Magistrate Judge issued a Report and
Recommendation by text entry. The Report and Recommendation
recommends that the Court grant Nurse DeLeone's motion
for leave to file an answer out of time, deny Plaintiff's
motion for entry of default, and grant Defendants' motion
to extend the deadline for filing dispositive motions. (ECF
No. 54). Plaintiff did not file an objection to the Report
and Recommendation. Rather, on September 3, 2019 and
September 12, 2019, envelopes containing Plaintiff's copy
of the Roseboro Order, (ECF No. 51), and the Report and
Recommendation, (ECF No. 54), were returned to the Clerk of
Court, marked “I/M refused legal mail” and
“I/M Chisolm refused this legal mail . . . Returned to
Sender, ” (ECF Nos. 56, 57).
Magistrate Judge thereafter issued the Report recommending
that the Court dismiss this action with prejudice for lack of
prosecution. (ECF No. 61). Plaintiff filed no objections, and
the time for doing so expired on October 12, 2019. In the
absence of objections to the Magistrate Judge's Report
and Recommendation, this Court is not required to provide an
explanation for adopting the recommendation. See Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather,
“in 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, 315 (4th Cir. 2005)
(quoting Fed.R.Civ.P. 72 and advisory committee's note).
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.” See Link v.
Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). As well as
inherent authority, this Court may sua sponte
dismiss a case for lack of prosecution under Fed.R.Civ.P.
41(b). Id. at 630. In returning his legal mail
concerning this case, Plaintiff has demonstrated that he is
not interested in pursuing his claims. Furthermore, he has
not filed a response to Nurse DeLeon's motion to file an
answer out of time or to Defendants' motion for summary
judgment. Accordingly, the Court finds that this case should
be dismissed pursuant to Fed.R.Civ.P. 41(b). However, the
Court will dismiss the action without prejudice.
ORDERED that this action is dismissed without prejudice for
lack of prosecution and for failure to comply with the
Court's Orders, pursuant to Rule 41(b) of the Federal
Rules of Civil Procedure and the factors outlined in
Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920
(4th Cir. 1982). See Ballard v. Carlson, 882 F.2d 93
(4th Cir. 1989). All pending motions are rendered moot.
IS SO ORDERED.
OF RIGHT TO APPEAL
parties are hereby notified that any right to appeal this
Order is governed by Rules 3 and 4 of the ...