Elawyers Elawyers
Ohio| Change

GODFREY v. MUELLER, 9:12-2153-RMG-BM. (2013)

Court: District Court, D. South Carolina Number: infdco20130731f69 Visitors: 7
Filed: Jul. 09, 2013
Latest Update: Jul. 09, 2013
Summary: REPORT AND RECOMMENDATION BRISTOW MARCHANT, Magistrate Judge. The pro se Plaintiff brought this action seeking relief pursuant to Title 42, United States Code, Section 1983. On April 24, 2013, the Defendants filed a motion for summary judgment. By Order ofthis Court filed May 8, 2013, pursuant to Roseboro v. Garrison , 528 F.2d 309 (4th Cir. 1975), the Plaintiffwas advised ofthe dismissal and summary judgment procedures and the possible consequences ifhe failed to respond adequately. How
More

REPORT AND RECOMMENDATION

BRISTOW MARCHANT, Magistrate Judge.

The pro se Plaintiff brought this action seeking relief pursuant to Title 42, United States Code, Section 1983. On April 24, 2013, the Defendants filed a motion for summary judgment. By Order ofthis Court filed May 8, 2013, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Plaintiffwas advised ofthe dismissal and summary judgment procedures and the possible consequences ifhe failed to respond adequately.

However, notwithstanding the specific warning and instructions as set forth in the Court's Roseboro Order, the Plaintiff failed to respond to the motion. As the Plaintiff is proceeding pro se, the Court filed a second Order on June 26,2013, advising Plaintiff that it appeared to the Court that he was not opposing the motion and wished to abandon this action, and giving the Plaintiff an additional ten (10) days in which to file his response to the Defendants' motion for summary judgment. The Plaintiff was specifically warned that if he failed to respond, this action would be recommended for dismissal with prejudice for failure to prosecute. Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978), Rule 41(b) Fed.R.Civ.P.

Notwithstanding this second warning, the Plaintiff still failed to file any response, or to contact the Court in any way. Therefore, Plaintiff meets all of the criteria for dismissal under Chandler Leasing Corp. v. Lopez, 669 F.2d 929 (4th Cir. 1982).1 Accordingly, it is recommended that this action be dismissed with prejudice for lack of prosecution. See Davis, 558 F.2d at 70; Rule 41(b), Fed.R.Civ.P.; Ballard v. Carlson, 882 F.2d 93, 95 (4thCir. 1989), cert. denied sub nom, Ballard v. Volunteers of America, 493 U.S. 1084 (1990) [Magistrate Judge's prior explicit warning that a recommendation ofdismissal 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].

FootNotes


1. He is personally responsible for proceeding in a dilatory fashion, the Defendants are suffering prejudice due to having to expend time and resources on a case in which the Plaintiff is unresponsive, and no sanctions other than dismissal appear to exist as the Plaintiff is indigent (and therefore not subject to monetary sanctions) and he has otherwise failed to respond to Court filings despite Court orders requiring him to do so. Lopez, 669 F.2d at 920.
Source:  Leagle

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer