Pruitt v. Troutman
Filing
27
REPORT AND RECOMMENDATIONS of Magistrate Judge Bristow Marchant that this action be dismissed, with prejudice, for lack of prosecution. If the Plaintiff notifies the Court that he wishes to proceed and provides a change of address within the time set forth for filing objections, the Clerk is directed to vacate this Report and Recommendation and return this file to the Magistrate Judge. Objections to R&R due by 4/13/2009. Signed by Magistrate Judge Bristow Marchant on 3/26/09. (rpol, )
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
Levi Pruitt, Plaintiff, v. Officer Troutman, Badge 602, Defendant.
) Civil Action No. 9:08-3048-GRA-BM
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REPORT AND RECOMMENDATION
The pro se Plaintiff brought this action seeking relief pursuant to Title 42, United States Code, Section 1983. On February 17, 2009, the Defendant filed a motion for summary judgment. By order of this Court filed February 19, 2009, pursuantto Roseboro v. Garrison, 528 F .2d 309 (4th Cir. 1975), the Plaintiff was advised of the dismissal and summary judgment procedures and the possible consequences ifhe failed to respond adequately. Plaintiff was specifically warned that ifhe failed to respond, the Defendant's motion may be granted, thereby ending his case. However, notwithstanding the specific warning and instructions as set forth in the Court's Roseboro order, the Plaintifffailed to respond to the motion, or to contact the Court in any way. Indeed, a review of the file in this matter reveals that the Court has had no contact from the Plaintiff since this action was filed over six (6) months ago. Further, Plaintiff has recently had another case he filed pro se dismissed for failure to prosecute, based on his failure to respond to a summary judgment motion or to contact the Court in that case. See Pruitt v. Brewton, C.A. No. 3:080879. Therefore, Plaintiff meets all of the criteria for dismissal of his case under Chandler
Leasing Corn. v. Lopez, 669 F.2d 929 (4 th Cir. 1982).1 Accordingly, it is recommended that this action be dismissed with prejudice for lack of prosecution. See Davis v. Williams, 558 F.2d 69, 70 (4th Cir. 1978); Rule 41(b), Fed. R. Civ. P. If, within the time for filing objections to this Report
and Recommendation, Plaintiff advises the Courtthat hewants to proceed with this matter and files a response to the motion for summary judgment, then in that event the Clerk is instructed to vacate this Report and Recommendation and return the file to the undersigned for further review. If, however, Plaintifffaiis to respond, the file should be forwarded to the District Judge for
disposition. Ballard v. Carlson, 882 F.2d 93,95 (4th Cir. 1989), cert. denied sub!lQ!ll, Ballard v. Volunteers of America, 493 U.S. 1084 (1990) [Magistrate Judge's prior explicit warning that a recommendation of dismissal would result from plaintiff failing to obey his order was proper grounds for the district court to dismiss suit when plaintiff did not comply despite warning]. The parties are referred to the Notice Page atta e h
March 24, 2009 Charleston, South Carolina
He is personally responsible for proceeding in a dilatory fashion, the Defendant is suffering prejudice due to having to expend time and resources on a case in which the Plaintiff is unresponsive, and no sanctions other than dismissal appear to exist as the Plaintiff is indigent (and therefore not subject to monetary sanctions) and he has otherwise failed to respond to Court filings despite Court orders requiring him to do so. Lopez, 669 F .2d at 920.
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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 Court Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. In 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 (4'h Cir. 2005). Specific written objections must be filed within ten (10) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The time calculation ofthis ten-day period excludes weekends and holidays and provides for an additional three (3) days for filing by mail. Fed. R. Civ. P. 6(a) & (e). Filing by mail pursuant to Fed. R. Civ. P. 5 may be accomplished by mailing objections to: Larry W. Propes, Clerk United States District Court Post Office Box 835 Charleston, South Carolina 29402
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. Am, 474 U.S. 140 (1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985).
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