Filed: Jul. 13, 2012
Latest Update: Jul. 13, 2012
Summary: Report and Recommendation THOMAS E. ROGERS, III, Magistrate Judge. Plaintiff Joshua Herman ("Plaintiff") filed this case pursuant to 42 U.S.C. 1983 1 on June 6, 2011. On April 13, 2012, Defendants filed a motion to dismiss pursuant to Rule 41(b) of the Federal Rules of Civil Procedure asserting that their attempt to serve Plaintiff with a copy of materials have been unsuccessful and said mailing was returned as undeliverable. (Doc. #76). Defendants also assert that they have not received an
Summary: Report and Recommendation THOMAS E. ROGERS, III, Magistrate Judge. Plaintiff Joshua Herman ("Plaintiff") filed this case pursuant to 42 U.S.C. 1983 1 on June 6, 2011. On April 13, 2012, Defendants filed a motion to dismiss pursuant to Rule 41(b) of the Federal Rules of Civil Procedure asserting that their attempt to serve Plaintiff with a copy of materials have been unsuccessful and said mailing was returned as undeliverable. (Doc. #76). Defendants also assert that they have not received any..
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Report and Recommendation
THOMAS E. ROGERS, III, Magistrate Judge.
Plaintiff Joshua Herman ("Plaintiff") filed this case pursuant to 42 U.S.C. § 19831 on June 6, 2011. On April 13, 2012, Defendants filed a motion to dismiss pursuant to Rule 41(b) of the Federal Rules of Civil Procedure asserting that their attempt to serve Plaintiff with a copy of materials have been unsuccessful and said mailing was returned as undeliverable. (Doc. #76). Defendants also assert that they have not received any further correspondence from the Plaintiff that would reflect a new address for service and is, therefore, unable to communicate with the Plaintiff or serve him with copies of any documents filed with this court. Id.
Because Plaintiff is proceeding pro se, he was advised on or about April 16, 2012, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), of the procedure for motion to dismiss and the possible consequences if he failed to respond adequately. The Roseboro Order was returned to the Clerk of Court's office via United States Postal Service on April 26, 2012, marked "Return to Sender."(Doc. #84). The Clerk of Court's office attempted to re-mail orders to the Plaintiff on two separate occasions. (See doc. entries #88 and #93). In fact, Plaintiff's mail has been returned to the Clerk of Court's office via United States Postal Service as undeliverable since October 21, 2011. Plaintiff has not responded to the motion or provided the court with an updated address since August 1, 2011. (Doc. #27).2
A. 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. Plaintiff has not responded to Defendants' 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. Accordingly, it is recommended that Defendants' motion to dismiss (Doc. #76) be granted and this action dismissed pursuant to Fed. R. Civ. Proc. 41(b).
CONCLUSION
As set out above, a review of the record indicates that the Plaintiff's complaint should be dismissed for failure to prosecute. It is, therefore,
RECOMMENDED that Defendants' motion to dismiss (doc. #76) be GRANTED and Plaintiff's complaint be dismissed for failure to prosecute pursuant to Fed. R. Civ. Proc. 41(b) with prejudice.
It is FURTHER RECOMMENDED that any other outstanding motions be deemed MOOT.
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:
Larry W. Propes, 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).
