Filed: Dec. 20, 2016
Latest Update: Dec. 20, 2016
Summary: REPORT AND RECOMMENDATION THOMAS E. ROGERS, III , Magistrate Judge . PROCEDURAL BACKGROUND Plaintiff, proceeding pro se, file this action under 42 U.S.C. 1983 1 on May 9, 2016, alleging a violation of his constitutional rights. On November 8, 2016, Defendant filed a motion for summary judgment along with a memorandum and exhibit in support thereof. (Doc. # 23). As the Plaintiff is proceeding pro se, the court issued an order on or about November 9, 2016, pursuant to Roseboro v. Garris
Summary: REPORT AND RECOMMENDATION THOMAS E. ROGERS, III , Magistrate Judge . PROCEDURAL BACKGROUND Plaintiff, proceeding pro se, file this action under 42 U.S.C. 1983 1 on May 9, 2016, alleging a violation of his constitutional rights. On November 8, 2016, Defendant filed a motion for summary judgment along with a memorandum and exhibit in support thereof. (Doc. # 23). As the Plaintiff is proceeding pro se, the court issued an order on or about November 9, 2016, pursuant to Roseboro v. Garriso..
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REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III, Magistrate Judge.
PROCEDURAL BACKGROUND
Plaintiff, proceeding pro se, file this action under 42 U.S.C. § 19831 on May 9, 2016, alleging a violation of his constitutional rights. On November 8, 2016, Defendant filed a motion for summary judgment along with a memorandum and exhibit in support thereof. (Doc. # 23). As the Plaintiff is proceeding pro se, the court issued an order on or about November 9, 2016, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately to Defendant's motion. (Doc. # 24). The Roseboro order was returned to the Clerk of Court's office via United States Postal Service on November 21, 2016, marked "Return to sender; insufficient address." (Doc. # 27). Plaintiff has not responded to the motion or provided the court with an updated address.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); 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 defendant's motion for summary judgment or the Court's orders requiring him to respond and has failed to provide the court with a correct updated address. No other reasonable sanctions are available. Accordingly, it is recommended that this action be dismissed pursuant to Fed. R. Civ. Proc. 41(b).
CONCLUSION
Based on the above reasoning, it is RECOMMENDED that this action be dismissed for failure to prosecute pursuant to Fed.R.Civ.P. 41(b) with prejudice.
