JACQUELYN D. AUSTIN, Magistrate Judge.
Timothy A. Evans, ("Plaintiff"), proceeding pro se, brought this action against seventeen defendants seeking relief pursuant to 42 U.S.C. § 1983. Plaintiff is an inmate in the custody of the South Carolina Department of Corrections ("SCDC") and is currently housed at Lee Correctional Institution. The events giving rise to Plaintiff's claims appear to have occurred while Plaintiff was incarcerated at Allendale Correctional Institution ("Allendale"). [See Doc. 1.]
Fed. R. Civ. P. 41(b). "The Federal Rules of Civil Procedure recognize that courts must have the authority to control litigation before them, and this authority includes the power to order dismissal of an action for failure to comply with court orders." Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (citing Fed. R. Civ. P. 41(b)). "Federal courts possess an inherent authority to dismiss cases with prejudice sua sponte." Gantt v. Md. Div. of Corr., 894 F.Supp. 226, 229 (D. Md. 1995) (citing Link v. Wabash R. Co., 370 U.S. 626 (1962); White v. Raymark Indust., Inc., 783 F.2d 1175 (4th Cir. 1986); Zaczek v. Fauquier Cnty., Va., 764 F.Supp. 1071, 1074 (E.D. Va.1991)).
The Fourth Circuit, in Davis v. Williams, recognizing that dismissal with prejudice is a harsh sanction that should not be invoked lightly, set forth four factors for determining whether Rule 41(b) dismissal is appropriate:
588 F.2d 69, 70 (4th Cir. 1978) (citing McCargo v. Hedrick, 545 F.2d 393, 396 (4th Cir. 1976)). Subsequently, however, the Fourth Circuit noted that "the four factors . . . are not a rigid four-pronged test," and whether to dismiss depends on the particular circumstances of the case. Ballard, 882 F.2d at 95.
For example, in Ballard, the court reasoned that "the Magistrate's explicit warning that a recommendation of dismissal would result from failure to obey his order is a critical fact that distinguishes this case from those cited by appellant.. . . In view of the warning, the district court had little alternative to dismissal. Any other course would have placed the credibility of the court in doubt and invited abuse." Id. at 95-96.
Plaintiff commenced this action more than a year ago by filing a Complaint on November 30, 2016.
On June 5, 2017, fifteen of the above-captioned Defendants (the "Moving Defendants")—all Defendants except for Defendant Bealum
As Plaintiff is proceeding pro se, the Court filed an Order on July 28, 2017, giving Plaintiff through August 17, 2017, to respond to the motion for summary judgment filed by the Moving Defendants. [Doc. 101.] Plaintiff was specifically advised that if he failed to respond, this action would be dismissed for failure to prosecute and for failure to comply with this Court's Order. [Id.] However, Plaintiff has failed to respond in any way to the motion for summary judgment. Indeed, Plaintiff has not filed anything in this case since July 7, 2017, despite multiple filings by the Moving Defendants and multiple Court Orders.
Based on the foregoing, it appears Plaintiff no longer wishes to pursue his claims against the Moving Defendants. As Plaintiff is proceeding pro se, he is personally responsible for his failure to file a response to the motion for summary judgment. Plaintiff has had over seven months to respond to the motion. Plaintiff's initial response was due by July 6, 2017; despite being advised of the possible consequences if he failed to adequately respond, Plaintiff elected not to respond.
The Court then filed another Order, reminding Plaintiff a response was due and giving him additional time—until August 17, 2017—to respond. The Court has warned Plaintiff the case would be dismissed pursuant to Rule 41(b) if Plaintiff failed to file a response. Despite this explanation by the Court, Plaintiff has elected not to respond. Because Plaintiff has already ignored Court Orders and deadlines, sanctions less drastic than dismissal would not be effective. Accordingly, it is recommended that the Moving Defendants should be dismissed from this case.
In his Complaint, Plaintiff named as a defendant an individual he identifies only as "Spalding." [Doc. 1 at 14.] According to Plaintiff, Spalding was a nurse at Allendale. [Id.] On January 12, 2017, a summons was issued for Spalding, which was returned unexecuted on February 16, 2017. [Docs. 11, 17.] After receiving Plaintiff's response to the Court's Order to provide an updated address or better name description or identification [Docs. 26, 35], on March 14, 2017, the Court ordered service of a second summons for Spalding; that summons was also returned unexectued on April 17, 2017 [Docs. 39, 41, 65].
On May 2, 2017, the Court ordered the attorney who had entered an appearance for the Moving Defendants in this case, Michael C. Tanner, to consult with counsel for the SCDC to ascertain whether Spalding had been employed by the SCDC on the date of the incident at issue, and to so inform the Court. [Doc. 72.] Mr. Tanner was further ordered to notify the Court whether he would accept service of process of the summons and complaint on Spalding's behalf or to notify the Court in writing of the current or last known address for Spalding. [Id.] On May 19, 2017, Mr. Tanner responded to the Court's Order, indicating that Spalding was previously known as Tina Thames and providing an address for this individual at her subsequent place of employment, Medfirst Staffing, LLC. [Doc. 75.]
On May 23, 2017, the Court ordered service of a third summons for Spalding [Docs. 80, 82]. The summons listed the defendant as "Spalding (a/k/a Tina Thames)" and included the business address for Medfirst Staffing, LLC. [Doc. 82.] The summons was returned executed on June 23, 2017; the process receipt indicates that Spalding (a/k/a Tina Thames) was not served at the Medfirst Staffing, LLC, address, but instead was served via certified mail to a "new address obtained from CLEAR." [Doc. 89.] On July 10, 2017, Tina Thames filed a pro se Answer, stating in part, "I am not now nor have I ever been named or known as Spaulding." [Doc. 95.] Tina Thames also provides an address in Las Vegas, Nevada. [Id.]
Based on the foregoing, the Court concluded that the wrong individual had been served with the summons and Complaint in this case and that Tina Thames should be dismissed from this case. Accordingly, on July 28, 2017, this Court issued an Order to show cause why Defendant Tina Thames should not be dismissed from this case. [Doc. 105.] In its Order, the Court directed Mr. Tanner to consult with the SCDC Office of General Counsel to determine whether Tina Thames is the correct individual identified as Defendant Spalding in Plaintiff's Complaint. [Id. at 1.] Mr. Tanner was directed to notify the Court in writing by August 18, 2017, as to what he had determined. [Id. at 2.] The Court also directed Plaintiff to file a response by September 8, 2017. [Id. at 2.]
On August 14, 2017, Mr. Tanner filed a response to this Court's Order to show cause, explaining that he had contacted the Office of General Counsel for the SCDC to inquire as to any employees with the last name of Spalding. [Doc. 114.] According to the Office of General Counsel, only two individuals with the last names of Spalding (Joseph Spaulding, Jr., and Frenchie Spaulding) were employed by the SCDC, and neither of those employees appeared to be the individual that Plaintiff named in his Complaint, as neither employee is a nurse. [Id.] Further, it appears that SCDC's initial belief that Tina Thames was previously named Spalding is incorrect. [Id.] Thus, it appears that Tina Thames is not the Spalding alleged in Plaintiff's complaint. [See Doc. 95.] Despite this Court's Order to show cause, Plaintiff elected not to respond. Based on the foregoing, it is recommended that Tina Thames be dismissed from this case.
Likewise, Defendant Spalding should be dismissed from this case because Plaintiff has failed to prosecute his case against her. Despite the Court's repeated requests, Plaintiff has failed to provide any additional information regarding this individual such that she can be served with the summons and Complaint in this case. The docket in this case details the extensive efforts this Court has taken, in connection with the efforts of the Moving Defendants' counsel, Mr. Tanner (who does not represent Spalding and has not accepted service on her behalf), to identify and locate Defendant Spalding. [See Docs. 17, 23, 39, 41, 65, 72, 80, 82, 89, 95, 105, 114.] These efforts have proven unsuccessful, and Plaintiff has failed to comply with this Court's many Orders requiring him to provide additional information to adequately identify Spalding. Accordingly, for the reasons stated above, it is recommended that Defendant Spalding be dismissed from this case for failure to prosecute and for failure to comply with this Court's Orders.
Wherefore, based upon the foregoing, the Court recommends that the following Defendants be DISMISSED from this case pursuant to Federal Rule of Civil Procedure 41(b): William R. Byars, Jr.; Dennis Patterson; John R. Pate; Arthur Jordan; McKendly Newton; Walter Worrock; Ricky Grimes; Larry Morris; George Jenkins; Rump; Keith Wallace; John Barkley; Donaldson; Spalding, f/k/a Tina Thames; M. Smart; and Ann Hallman. Accordingly, the only remaining Defendant in this case should be Bealum, a/k/a Renea Behlin.
IT IS SO RECOMMENDED.
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:
