Filed: Jul. 11, 2017
Latest Update: Jul. 11, 2017
Summary: THOMAS E. ROGERS, III , Magistrate Judge . This is a civil action filed pro se by Plaintiff, a state prisoner. Pursuant to 28 U.S.C. 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court. BACKGROUND Plaintiff filed this action under 42 U.S.C. 1983 on November 15, 2016, alleging claims of excessive force and deliberat
Summary: THOMAS E. ROGERS, III , Magistrate Judge . This is a civil action filed pro se by Plaintiff, a state prisoner. Pursuant to 28 U.S.C. 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court. BACKGROUND Plaintiff filed this action under 42 U.S.C. 1983 on November 15, 2016, alleging claims of excessive force and deliberate..
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THOMAS E. ROGERS, III, Magistrate Judge.
This is a civil action filed pro se by Plaintiff, a state prisoner. Pursuant to 28 U.S.C. § 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court.
BACKGROUND
Plaintiff filed this action under 42 U.S.C. § 1983 on November 15, 2016, alleging claims of excessive force and deliberate indifference in regard to medical care. Plaintiff is not proceeding in forma pauperis. On March 22, 2017, the court authorized service. (ECF No. 24). On April 3, 2017, the summonses for all Defendants were re-issued due to the Court granting Plaintiff's motion for assistance from the U.S. Marshal's service for assistance with service of process. (ECF Nos. 28, 30). All the summonses returned executed except for the summonses for Defendants Escalyne and Wilson. The notation on the unexecuted summonses was that there was no employee by the name of Escalyne and there were several Wilsons. (ECF Nos. 33, 34).
On June 1, 2017, the court ordered Plaintiff to provide new summonses and Forms USM-285 for Escalyne and Wilson with more specific information. The Order informed Plaintiff that:
The providing of sufficient, accurate, and complete information on the Forms USM-285 is the responsibility of Plaintiff. Also, Plaintiff's attention is directed to Rule 4(m) of the Federal Rules of Civil Procedure, which provides that unless a particular defendant is served within 90 days after the complaint is filed, this Court may have to dismiss an action without prejudice as to that particular defendant. Case law interpreting Rule 4(m) or its predecessor has uniformly held that dismissal is mandatory unless good cause is shown if a Defendant is not served within the days provided by the rule.
Accordingly, Plaintiff is hereby directed to provide to the Clerk of Court, within twenty-one (21) days of the date of this Order, updated service forms with more specific identifying information for Defendants Escalyne and Wilson should Plaintiff desire to attempt service upon these Defendants again.
Plaintiff is hereby warned that if he does not respond to this Order and/or does not provide a new summons and Forms USM-285 each for Escalyne and Wilson with additional identifying information, Defendants Escalyne and Wilson may be dismissed without prejudice.
Plaintiff did not respond to the order with more information or complete service documents.
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, Plaintiff is proceeding pro se so he is entirely responsible for his actions. It is solely through plaintiff's own neglect, and not that of an attorney, that no response to the Order has been filed. Plaintiff has not responded to the Court's Order requiring him to respond, despite orders directing him in regard to the adequacy of service documents and notifying him of the consequences for failure to respond. Due to Plaintiff's failure to respond, Defendants Escalyne and Wilson were never served with a copy of the summons and complaint. As Plaintiff failed to provide new summonses and Forms USM-285 for Defendants Escalyne and Wilson with more specific information and Defendants Escalyne and Wilson were not served, it is recommended that Defendants Escalyne and Wilson be dismissed as a party pursuant to Fed. R. Civ. Proc. 41(b) or in the alternative for a violation of Fed. R. Civ. Proc. 4(m).
CONCLUSION
As set out above, a review of the record indicates that the action as to the particular Defendants Escalyne and Wilson should be dismissed because the Plaintiff has failed to prosecute his claims against them.
It is, therefore, RECOMMENDED that Plaintiff's claims as against Defendants Escalyne and Wilson only be dismissed without prejudice for failure to prosecute pursuant to Fed. R. Civ. Proc. 41(b).
In the alternative, it is RECOMMENDED that the action be dismissed without prejudice as to Defendants Escalyne and Wilson pursuant to Fed. R. Civ. Proc. 4(m).
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).
