Filed: Sep. 18, 2017
Latest Update: Sep. 18, 2017
Summary: REPORT AND RECOMMENDATION THOMAS E. ROGERS, III , Magistrate Judge . Plaintiff Alexis Centeno, a federal prisoner proceeding pro se, filed this action on May 6, 2016. An Order was entered by the court adopting and incorporating the report and recommendation of the undersigned denying summary judgment with respect to Plaintiff's Bivens claim and giving Defendants forty-five (45) days to supplement with Certification and file dispositive motions with regard to any FTCA claims. (Doc. #67).
Summary: REPORT AND RECOMMENDATION THOMAS E. ROGERS, III , Magistrate Judge . Plaintiff Alexis Centeno, a federal prisoner proceeding pro se, filed this action on May 6, 2016. An Order was entered by the court adopting and incorporating the report and recommendation of the undersigned denying summary judgment with respect to Plaintiff's Bivens claim and giving Defendants forty-five (45) days to supplement with Certification and file dispositive motions with regard to any FTCA claims. (Doc. #67). I..
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REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III, Magistrate Judge.
Plaintiff Alexis Centeno, a federal prisoner proceeding pro se, filed this action on May 6, 2016. An Order was entered by the court adopting and incorporating the report and recommendation of the undersigned denying summary judgment with respect to Plaintiff's Bivens claim and giving Defendants forty-five (45) days to supplement with Certification and file dispositive motions with regard to any FTCA claims. (Doc. #67).
In the complaint, Plaintiff specifically alleges that he was attacked by inmate Cabrera Manuael and suffered 1st and 2nd degree burns to his shoulders, ears, and was bitten on this 4th ring finger. (See complaint). Plaintiff alleges that as a result of the injuries, he received inadequate medical care at FCI Williamsburg which ultimately lead to his 4th ring finger being amputated.
By order filed September 18, 2017, The United States was substituted as the sole defendant in this action in place of Defendants Meeks, Simmons, Rayburn, Urrea, Whitehurst, Loranth, and Massa in accordance with 28 U.S.C. §2679(d)(1). Accordingly, the United States is the only remaining Defendant in this action, and Plaintiff's FTCA causes of action are the only remaining claims before the court.
On August 9, 2017, Defendant United States filed a Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6).1 Because Plaintiff is proceeding pro se, he was advised on or about August 11, 2017, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), of the procedure for a Motion to Dismiss and the possible consequences if he failed to respond adequately. (Doc. #74). Plaintiff failed to file a response.2
RULE 41(B) DISMISSAL
A complaint may be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989), cert. denied, 493 U.S. 1084 (1990), and Chandler Leasing Corp. v. Lopez, 669 F.2d 919 (4th Cir. 1982). In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:
(1) the degree of plaintiff's responsibility in failing to respond;
(2) the amount of prejudice to the defendant;
(3) the history of the plaintiff in proceeding in a dilatory manner; and,
(4) the existence of less drastic sanctions other than dismissal.
Davis v. Williams, 588 F.2d 69 (4th Cir. 1978).
In the present case, the Plaintiff is proceeding pro se so he is entirely responsible for his actions. It is solely through Plaintiff's neglect, and not that of an attorney, that no responses have been filed to this motion for summary judgment. Plaintiff has not responded to Defendant's motion to dismiss or the court's order requiring him to respond. The undersigned concludes the Plaintiff has abandoned this lawsuit. It appears there are no less drastic sanctions available.
CONCLUSION
Based on the above reasoning, it is RECOMMENDED that this action be dismissed for failure to prosecute pursuant to Fed. R. Civ. Proc. 41(b) with prejudice
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
Post Office Box 2317
Florence, South Carolina 29503
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).
