Filed: Sep. 12, 2014
Latest Update: Sep. 12, 2014
Summary: REPORT AND RECOMMENDATION PAIGE J. GOSSETT, Magistrate Judge. The petitioner, Fernando A. Settles, a self-represented federal prisoner, brought this action seeking a writ of habeas corpus pursuant to 28 U.S.C. 2241. On July 15, 2014, the respondent filed a motion to dismiss. (ECF No. 19.) By order of this court filed July 16, 2014, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the petitioner was advised of the dismissal and summary judgment procedures and the possible c
Summary: REPORT AND RECOMMENDATION PAIGE J. GOSSETT, Magistrate Judge. The petitioner, Fernando A. Settles, a self-represented federal prisoner, brought this action seeking a writ of habeas corpus pursuant to 28 U.S.C. 2241. On July 15, 2014, the respondent filed a motion to dismiss. (ECF No. 19.) By order of this court filed July 16, 2014, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the petitioner was advised of the dismissal and summary judgment procedures and the possible co..
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REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, Magistrate Judge.
The petitioner, Fernando A. Settles, a self-represented federal prisoner, brought this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. On July 15, 2014, the respondent filed a motion to dismiss. (ECF No. 19.) By order of this court filed July 16, 2014, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the petitioner was advised of the dismissal and summary judgment procedures and the possible consequences if he failed to respond adequately. (ECF No. 20.)
Notwithstanding the specific warning and instructions set forth in the court's Roseboro order, the petitioner failed to respond to the motion. As the petitioner is proceeding pro se, the court filed a second order on August 26, 2014, advising the petitioner that it appeared to the court that he was not opposing the motion and wished to abandon this action, and giving the petitioner an additional fourteen (14) days in which to file his response to the respondent's motion to dismiss. (ECF No. 22.) The petitioner was specifically warned that if he failed to respond, this action would be recommended for dismissal with prejudice for failure to prosecute. See Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978); Fed. R. Civ. P. 41(b).
Despite this second warning, the petitioner still did not respond. Therefore, the petitioner meets all of the criteria for dismissal under Chandler Leasing Corp.v. Lopez, 669 F.2d 919 (4th Cir. 1982).1
RECOMMENDATION
Accordingly, it is recommended that this action be dismissed with prejudice for lack of prosecution. See Davis, 588 F.2d at 70; Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (stating that magistrate judge's prior explicit warning that a recommendation of dismissal would result from the petitioner failing to obey his order was proper grounds for the district court to dismiss the suit when the petitioner did not comply despite the warning), cert. denied sub nom, Ballard v. Volunteers of America, 493 U.S. 1084 (1990); Fed. R. Civ. P. 41(b). In light of the court's recommendation, the court further recommends that any pending motions (ECF No. 19) be terminated.
