REPORT AND RECOMMENDATION

MARY GORDON BAKER, Magistrate Judge.

Plaintiff, proceeding pro se and in forma pauperis, filed this employment action on April 16, 2018, alleging race discrimination at his workplace. (Dkt. No. 1.) On June 4, 2019, Defendant Southeastern Grocers, LLC ("Defendant") filed a Motion for Sanctions (Dkt. No. 66) based on Plaintiff's "repeated failures to comply with this Court's orders and the applicable rules of procedure."1 (Dkt. No. 73 at 1.) Defendant asks that the Court dismiss this action with prejudice and impose monetary sanctions against Plaintiff "in an amount to be determined by the Court." (Dkt. No. 66 at 11.)

BACKGROUND

A review of the docket in this case as well as the motions and other filings with the Court reveals that Plaintiff has failed to properly engage in discovery with Defendant and has failed to comply with the Court's directives. Defendant served its First Request for Production and First Set of Interrogatories on Plaintiff on January 29, 2019. Plaintiff failed to respond to the Discovery Requests, which were due on February 28, 2019. Plaintiff was not communicative when defense counsel requested Plaintiff provide his responses to the discovery requests and asked Plaintiff to provide dates on which he was available for his deposition. Based on Plaintiff's failure to respond, Defendant filed a Motion to Compel Discovery on March 19, 2019. (Dkt. No. 52.) Plaintiff did not respond to Defendant's motion. The Court granted in part Defendant's Motion to Compel Discovery and ordered Plaintiff "to provide his responses to Defendant's Discovery Requests and any and all documents responsive to same by April 18, 2019." (Dkt. No. 53.) In this April 8, 2019 Order, the Court also advised Plaintiff that failure to comply with discovery orders could result in the dismissal of this action. (Id. at 2.)

Plaintiff then filed a Motion for Extension on April 16, 2019, claiming that he never received Defendant's discovery requests or any correspondence from defense counsel. (Dkt. No. 55.) He requested a 60-day extension to respond to the discovery requests. (Id.) The Court expressed doubt as to how Plaintiff could have received all correspondence from the Court, but not receive any documents sent by Defendant. Nevertheless, and in an abundance of caution, the Court extended the deadline for Plaintiff to respond to Defendant's discovery requests to May 22, 2019. (Dkt. No. 56.)

On April 23, 2019, Defendant filed a Motion to Compel Plaintiff to Provide Updated Contact Information, to Extend the Discovery Deadline, and to Conduct a Telephonic Status Conference. (Dkt. No. 58.) The next day, the Court entered an Order setting an in-person status conference with the parties for May 1, 2019. (Dkt. No. 60.) The Court also set a deadline of May 3, 2019 for Plaintiff to provide defense counsel with his current mailing address, working phone number, and email address. (Id.) Additionally, the Court adopted Defendant's proposed Amended Scheduling Order, which extended the discovery deadline to June 28, 2019. (Dkt. Nos. 59; 60.) Defense counsel appeared in person at the May 1, 2019 status conference; however, Plaintiff failed to appear. The parties eventually agreed upon a date for Plaintiff's deposition. On May 16, 2019, Defendant sent Plaintiff the Notice of Deposition, which set the deposition for June 11, 2019. Plaintiff failed to provide Defendant with his responses to the discovery requests by May 22, 2019, in violation of the Court's April 17, 2019 Order. Plaintiff did not respond to email communications from defense counsel sent on May 24, 2019 and May 29, 2019, asking about the status of Plaintiff's discovery responses.

Defendant filed the instant Motion for Sanctions on June 4, 2019. (Dkt. No. 66.) On June 4, 2019, Plaintiff filed a "Response to Interrogatory" which stated, "the response to the request for Interrogatory for Defendant South Eastern Groceries." (Dkt. No. 68.) Specifically, this filing provided "the answers to the 16 questions asked for information on people who know or have information regarding plaintiffs' work history." (Id.) By Text Order on June 6, 2019, the Court informed Plaintiff that there was no indication Plaintiff's response had been served on Defendant; that filing this document with the Court does not accomplish service upon Defendant, as required under the Federal Rules of Civil Procedure; and that Plaintiff is responsible for serving discovery requests and responses to discovery requests upon Defendant pursuant to the Federal Rules of Civil Procedure. (Dkt. No. 70.) In their reply brief, Defendant states that Plaintiff never effectuated proper service of this response. (Dkt. No. 73 at 2.) Defendant further explains that this "response" filed by Plaintiff "appears to be an incomplete response to Interrogatory No. 1" and that there "were also 15 other interrogatories that Plaintiff did not even attempt to answer." (Id.) Defendant also explains that its discovery requests "included Defendant's First Request for Production, which asked him to produce documents responsive to 29 various categories"—Plaintiff has not responded to these discovery requests. (Id.)

Plaintiff filed a response to the Motions for Sanctions on June 11, 2019, asserting that he has "complied with all request[s] as needed from Defendants." (Dkt. No. 72 at 1.) Plaintiff offered no compelling reasons for his failure to respond to the majority of Defendants' discovery requests and his failure to appear for the in-person status conference. Defendant filed a reply brief on June 17, 2019, alleging that Plaintiff's assertion is "inconsistent with the documented history of the case and the representations he previously made to the Court." (Dkt. No. 73 at 4.) Defendant also explained that defense counsel canceled Plaintiff's June 11, 2019 deposition because "it would be a waste of both his and Plaintiff's time to depose Plaintiff . . . without discovery responses and document production." (Id. at 5.)

STANDARDS

Rule 37(b)(2), Fed. R. Civ. P., provides that if a party fails to obey an order to provide or permit discovery, the Court in which the action is pending may make such orders in regard to such failure as are just, including dismissing the action. In addition, Rule 41(b), Fed. R. Civ. P., authorizes the Court to dismiss an action for failure to prosecute or for failure to comply with court orders. "There is no doubt that Federal Courts possess the inherent authority to dismiss a case with prejudice . . ." See Link v. Wabash Railroad Co., 370 U.S. 626, reh'g. denied, 371 U.S. 873 (1962); Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (courts have the authority to dismiss cases under Rules 37 and 41 as part of the courts' "comprehensive arsenal of Federal Rules and statutes to protect themselves from abuse").

Prior to imposing the sanction of dismissal under Rule 37(b), Fed. R. Civ. P., the district court must consider four factors: (1) whether the noncomplying party acted in bad faith; (2) the degree of prejudice suffered by the other party or parties as a result of the failure to comply; (3) the deterrence value of dismissal as a sanction for noncompliance; and (4) the efficacy of a less drastic sanction. Mutual Fed. Sav. & Loan Ass'n v. Richards & Assocs., 872 F.2d 88, 92 (4th Cir.1989). The Fourth Circuit has emphasized the importance of warning the offending party of what may follow prior to dismissing the action for failure to comply with discovery obligations. See, e.g., Hathcock v. Navistar Int'l Transp. Corp., 53 F.3d 36, 40 (4th Cir. 1995); Choice Hotels Int'l, Inc. v. Goodwin & Boone, 11 F.3d 469, 473 (4th Cir.1993) (court must give the noncomplying party an "explicit and clear" warning of the consequences of failing to satisfy the court's conditions and orders); Lolatchy v. Arthur Murray, Inc., 816 F.2d 951, 953 (4th Cir.1987) (stating that warning was a "salient fact" that distinguished cases in which default judgment was an appropriate sanction for discovery abuse under Rule 37).

Whether to dismiss under Rule 41(b) is also a matter for the Court's discretion; see Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978); and the Court of Appeals for the Fourth Circuit has developed a four-prong test to determine whether a Rule 41(b) dismissal is appropriate. The District Court must consider (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 sanctions less drastic than dismissal. Chandler Leasing Corp., 669 F.2d 9 at 920; Tinsley v. Quick & Reilly, Inc., 216 F.R.D. 337, 338 (E.D. Va. 2001); Contreras v. NFN Pettiford, No. 05-cv-3552, 2006 WL 2621866, at *2 (D.S.C. Sept. 11, 2006).

The standards for dismissal under Rule 37(b)(2) and Rule 41(b) are "virtually the same." Cooper v. Spartanburg Sch. Dist. 7, No. 715-cv-03072-JMC-JDA, 2017 WL 9289401, at *4 (D.S.C. Feb. 24, 2017) (quoting Carter v. Univ. of W. Va. Sys., 23 F.3d 400, 1994 WL 192031, at *2 (4th Cir. 1994)), adopted by, 2017 WL 4021084 (D.S.C. Sept. 12, 2017). Accordingly, to determine whether this action should be dismissed for Plaintiff's failure to comply with discovery requests and the Court's orders, the Court must consider (1) whether Plaintiff acted in bad faith; (2) the amount of prejudice Plaintiff's noncompliance caused Defendants; (3) the need for deterrence of the sort of noncompliance exhibited by Plaintiff; (4) the effectiveness of less drastic sanctions; and (5) whether Plaintiff has a history of deliberately proceeding in a dilatory fashion. Id. (citing Mut. Fed. Sav. & Loan Ass'n, 872 F.2d at 92; Chandler Leasing Corp., 669 F.2d at 920).

DISCUSSION

The record before the Court in this case clearly shows that Plaintiff has failed to properly or timely respond to discovery requests, that he has failed to comply with court orders directing him to comply with discovery requests, that he has failed to appear for an in-person status conference, and that he has failed to properly communicate with defense counsel. Hence, the record reflects that Plaintiff has acted in bad faith. The docket and filings in this case further clearly set out a "drawn-out history of deliberately proceeding in a dilatory fashion" by the Plaintiff and further demonstrate that the need for deterrence of conduct like Plaintiff's is significant. Therefore, Plaintiff meets the first, third, and fifth prongs of the Fourth Circuit's five prong test. Mut. Fed. Sav. & Loan Ass'n, 872 F.2d at 92; Chandler Leasing Corp., 669 F.2d at 920.

Additionally, while the Plaintiff has engaged in the conduct described herein, the continuation of this action has caused the Defendant to incur continuing costs and expenses associated with this lawsuit. For example, as noted above, defense counsel appeared for the in-person status conference, while Plaintiff did not appear. Further, Plaintiff's failure to cooperate in discovery has prejudiced the Defendant's ability to ascertain the facts and prepare a defense in this action, as recently evidenced by the necessary cancelation of Plaintiff's deposition. Therefore, the facts in this case also satisfy the second prong of the Fourth Circuit's five prong test. Mut. Fed. Sav. & Loan Ass'n, 872 F.2d at 92; Chandler Leasing Corp., 669 F.2d at 920.

As for the fourth prong of the Fourth Circuit's five prong test, the undersigned is mindful of the fact that federal courts have historically treated pro se litigants with some degree of liberality. However, pro se litigants are not immune from any sanction by virtue of their status alone. See, e.g., Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989), cert. denied sub nom, Ballard v. Volunteers of America, 493 U.S. 1084 (1990); Gantt v. Maryland Div. Of Correction, 894 F.Supp. 226 (D. Md. 1995), aff'd, 73 F.3d 357 (4th Cir. 1996). Significantly, Plaintiff has previously been specifically warned by the Court that his failure to cooperate in discovery would result in a recommendation of dismissal of this case. (See Dkt. No. 53); Cf. Ballard, 882 F.2d at 95 (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). Even so, Plaintiff failed to timely submit responses to the Defendant's discovery requests or otherwise properly respond to Defendant's inquiries. Therefore, dismissal would appear to be an appropriate sanction in this case. Lolatchy v. Arthur Murray, Inc., 816 F.2d 951, 954, n.2 (4th Cir. 1987) (noting that warning to parties was a "salient fact" that distinguished cases in which default judgment was appropriate sanction for discovery abuse under Rule 37); see also Mut. Fed. Sav. & Loan Ass'n, 872 F.2d at 92.

Here, Defendants have asked both for the dismissal of this action and monetary sanctions. In an effort to try and fashion some sanction less drastic than dismissal, but sufficient to impress upon the Plaintiff the need for him to cooperate in this litigation and to comply with the Court's orders and the rules of this Court, the undersigned finds that a nominal monetary penalty is appropriate. Whether a monetary fine as penalty for Plaintiff's conduct would result in a change in his behavior is unknown; however, through the payment of at least some of the fees and costs incurred by the Defendant as a result of Plaintiff's conduct, Plaintiff may be able to sufficiently demonstrate to the Court that he will comply with this Court's rules in the future to allow this case to proceed, while at the same time allowing the Defendant to recoup some of the losses it has incurred as a result of Plaintiff's actions to date. The undersigned recommends that a monetary penalty of $250.00 is an appropriate sanction at this time.

Accordingly, the undersigned recommends the Defendant's Motion for Sanctions be granted in part at this time, in that the Court should impose a monetary penalty of $250.00, to be paid by Plaintiff by a deadline set by the Court. In the event any payment ordered by the Court is then made by Plaintiff, Defendant's request for dismissal of this case as a sanction for Plaintiff's conduct would then be denied, with a new deadline set for Plaintiff's compliance with discovery in this case. However, in the event Plaintiff fails to timely remit any required payment, the Defendant's Motion for Sanctions in the form of dismissal would be granted in its entirety, and this action would be dismissed with prejudice.

CONCLUSION

Based on the foregoing, the undersigned recommends that Defendant's Motion for Sanctions (Dkt. No. 66) be granted in part at this time, in that the Court should impose a monetary penalty of $250.00, to be paid by Plaintiff by a deadline set by the Court. In the event any payment ordered by the Court is then made by Plaintiff, Defendant's request for dismissal of this case as a sanction for Plaintiff's conduct should then be denied, with a new deadline set for Plaintiff's compliance with discovery in this case. However, in the event Plaintiff fails to timely remit any required payment, then Defendant's Motion for Sanctions should be granted in its entirety, and this action should be dismissed with prejudice.

IT IS SO RECOMMENDED.

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:

Failure 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).