Filed: Dec. 18, 2018
Latest Update: Dec. 18, 2018
Summary: REPORT OF MAGISTRATE JUDGE . KEVIN F. McDONALD , Magistrate Judge . The plaintiff, a state prisoner proceeding pro se, brought this action alleging a claim of gross negligence. The complaint was construed as seeking relief pursuant to Title 42, United States Code 1983. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under Section
Summary: REPORT OF MAGISTRATE JUDGE . KEVIN F. McDONALD , Magistrate Judge . The plaintiff, a state prisoner proceeding pro se, brought this action alleging a claim of gross negligence. The complaint was construed as seeking relief pursuant to Title 42, United States Code 1983. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under Section ..
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REPORT OF MAGISTRATE JUDGE.
KEVIN F. McDONALD, Magistrate Judge.
The plaintiff, a state prisoner proceeding pro se, brought this action alleging a claim of gross negligence. The complaint was construed as seeking relief pursuant to Title 42, United States Code 1983. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under Section 1983 and submit findings and recommendations to the district court.
On October 17, 2018, the defendant filed a motion to dismiss for lack of jurisdiction, arguing that the plaintiff stated in the complaint that the action was brought pursuant to the South Carolina Tort Claims Act (doc. 27). By order filed the same date, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the summary judgment and dismissal procedure and the possible consequences if he failed to respond adequately (doc. 28). The plaintiff did not file a response. As the plaintiff is proceeding pro se, the court filed a second order on November 26, 2018, giving the plaintiff through December 17, 2018, in which to file his response to the defendant's motion (doc. 31). The plaintiff was again specifically advised that, if he failed to respond, this action would be subject to dismissal for failure to prosecute. The plaintiff has not filed a response.
A complaint may be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989). In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:
(1) the degree of personal responsibility on the part of the plaintiff;
(2) the amount of prejudice to the defendant caused by the delay;
(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, 70 (4th Cir.1978).
In the present case, the plaintiff is proceeding pro se, and he is thus entirely responsible for his actions. It is solely through the plaintiff's neglect, and not that of an attorney, that no response has been filed. Meanwhile, the defendant is left to wonder when the action against him will be resolved. The plaintiff has not responded to the defendant's motion to dismiss or the court's orders requiring him to respond. Accordingly, the undersigned concludes the plaintiff has abandoned his lawsuit. No other reasonable sanctions are available.
Based on the foregoing, it appears the plaintiff no longer wishes to pursue this action. Accordingly, it is recommended that this action be dismissed for lack of prosecution pursuant to Rule 41(b). Should the district court adopt this recommendation, the defendant's motion to dismiss (doc. 27) will be rendered moot.
IT IS SO RECOMMENDED.
