ARMSTRONG v. LIGHTSEY
Filing
12
MEMORANDUM OPINION AND RECOMMENDED RULING - MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 12/15/11 that the Court dismiss this actionwithout prejudice. (Wilson, JoAnne)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOE BENTON ARMSTRONG, JR.,
Plaintiff,
v.
DR. LIGHTSEY,
Defendant.
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1:11CV285
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This
case
comes
before
Magistrate Judge sua sponte.
2011.)
the
undersigned
United
States
(See Docket Entry dated Dec. 14,
The case began when Plaintiff filed a Complaint under 28
U.S.C. § 1983 (Docket Entry 2), along with an Application for Leave
to Proceed In Forma Pauperis (Docket Entry 1). In open court (with
Plaintiff present) and in a written order (which the Clerk mailed
to Plaintiff), the Court (per United States Magistrate Judge
Wallace W. Dixon) denied Plaintiff’s Application, but permitted
Plaintiff to maintain the action by paying the filing fee in
monthly installments.
and Aug. 2, 2011.)
(See Docket Entries 8, 9, and dated July 28
At that same proceeding and in that same
written order, the Court directed Plaintiff to complete a summons
form so the United States Marshal’s Office could effect service.
(See id.)
Plaintiff returned the summons form to the Clerk, but
the address Plaintiff provided was inadequate for service.
Docket Entries 10, 11.)
(See
In addition, Plaintiff has failed to make
any of the monthly installment payments ordered by Magistrate Judge
Dixon, to file a timely objection to the denial of pauper status
and the requirement of installment payments, or to seek relief from
the payment obligation due to changed circumstances.
(See Docket
Entries dated July 28, 2011, to present.)
“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.
Fed. R. Civ. P. 41(b).
In
this case, appellant failed to respond to a specific directive from
the court.”
Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989).
Accordingly, the Court should dismiss this action.
In making that recommendation, the undersigned Magistrate
Judge recognizes that “dismissal is not a sanction to be invoked
lightly.”
Id.
Generally, before dismissing an action based on a
party’s failure to comply with an order, a court should consider:
“(i) the degree of personal responsibility of the plaintiff; (ii)
the amount of prejudice caused the defendant; (iii) the existence
of a history of deliberately proceeding in a dilatory fashion, and
(iv) the existence of a sanction less drastic than dismissal.” Id.
In this case, Plaintiff bears sole responsibility for the instant
non-compliance, Plaintiff’s non-compliance prejudices Defendant’s
right to prompt disposition of this case, Plaintiff has engaged in
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an ongoing pattern of non-compliance, and no other sanction appears
feasible or sufficient.
IT IS THEREFORE RECOMMENDED that the Court dismiss this action
without prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
December 15, 2011
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