WEAKS v. MORRISON

Filing 5

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 04/19/2016, that this action be dismissed without prejudice. (Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JAMIL WEAKS,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
OFFICER MORRISON,
Defendant.

1:15CV1008

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This

case

comes

before

the

undersigned

United

States

Magistrate Judge, sua sponte, in light of Plaintiff’s failure to
comply with an order and his abandonment of this action.
Plaintiff filed an application to proceed in forma pauperis
(the “IFP Application”) (Docket Entry 1) in conjunction with his
Complaint

(Docket Entry

2).

Upon

review of

Plaintiff’s

IFP

Application, the Court entered an order on December 17, 2015 (the
“Order”), granting Plaintiff’s IFP Application subject to the
condition that he “submit to the Clerk an initial payment of
$16.67” (the “Initial Payment”) within sixty days after the date of
the Order.

(Docket Entry 3 at 2.)

The Order further cautioned

Plaintiff that “FAILURE TO COMPLY WITH THIS ORDER IN A TIMELY
MANNER WILL RESULT IN DISMISSAL OF THIS ACTION WITHOUT FURTHER
NOTICE TO PLAINTIFF.”

(Id. at 4 (emphasis in original).)

On February 11, 2016, Plaintiff filed a document indicating
that he had “been shipped to [a different prison] since [the

Court’s Order],” and that he “[s]till would like to pursue [this]
case.”

(Docket Entry 4 at 1.)

In that same document, however,

Plaintiff also stated that he “would like to forego [this] case and
claim against [Defendant].”

(Id. at 2.)

Further, Plaintiff did

not make the Initial Payment by February 15, 2016 (i.e., 60 days
after the entry of the Order), as directed in the Order.

(See

Docket Entries dated Dec. 17, 2015, through Feb. 15, 2016.)
Based on Plaintiff’s contradictory assertions that he would
both like to “pursue” and “forego” this action, as well as his
failure to timely make the Initial Payment, the Court entered a
Text Order (the “Text Order”), providing that,
on or before [March 17, 2016], Plaintiff: (1) shall file
a Notice making clear whether he ‘still would like to
pursue [this] case’ ([Docket Entry 4 at 1]) OR if he
‘would like to forego [this] case and claim against
[Defendant]’ ([Docket Entry 4 at 2]); and (2) if
Plaintiff so indicates his desire to pursue this case, he
shall make [the Initial Payment] or shall file a Motion
for Relief from Stay containing a statement (made under
oath or penalty of perjury) verifying that Plaintiff has
not had access to $16.67 in the last 30 days. Failure by
Plaintiff to comply with this Text Order will result in
dismissal of this case without further notice.
(Text Order dated Feb. 16, 2016.)
To date, Plaintiff has not filed a notice indicating his
intent to pursue or forego this case.
Feb. 16, 2016, to present.)

(See Docket Entries dated

Further, although the Clerk received

funds in the amount of $24.67 on March 2, 2016 (Docket Entry dated
Mar. 2, 2016), and $29.86 on April 5, 2016 (Docket Entry dated Apr.
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5, 2016), the Clerk indicated that Plaintiff’s custodian submitted
both of those payments, consistent with the portion of the Order
directed to said custodian at the inception of the case (Docket
Entry 3 at 2-4).

Those payments, therefore, do not represent a

volitional statement by Plaintiff that he wishes to pursue this
case.

Accordingly, the Court should dismiss this action for

Plaintiff’s

failure

to

comply

with

the

Text

Order

and

his

abandonment of this action.
In making this recommendation, the undersigned recognizes that
“dismissal is not a sanction to be invoked lightly.”
Carlson, 882 F.2d 93, 95 (4th Cir. 1989).

Ballard v.

Nonetheless, “[t]he

Federal Rules of Civil Procedure [(the “Rules”)] 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.”
R. Civ. P. 41(b)).

Id. (citing Fed.

The Rules also authorize dismissal “[i]f the

plaintiff fails to prosecute.”

Fed. R. Civ. P. 41(b); see also

Link v. Wabash R.R. Co., 370 U.S. 626, 629-32 (1962) (noting that
federal courts have the inherent power to dismiss an action for
failure to prosecute either sua sponte or on the motion of a
party).

“The power to invoke this sanction [of dismissal] is

necessary in order to prevent undue delays in the disposition of
pending cases and to avoid congestion in the calendars of the
District Courts.”

Link, 370 U.S. at 629-30.
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In determining

whether to impose such a dismissal, courts 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” (the
“Ballard Factors”). Ballard, 882 F.2d at 95. Applying the Ballard
Factors

to

the

facts

of

this

case

confirms

that

dismissal

represents the only plausible course of action here.
The

first

Ballard

Factor

favors

dismissal

as

Plaintiff

proceeds pro se, and therefore, bears sole responsibility for his
failure to comply with the Text Order’s requirement that he provide
notice to the Court whether he intends to pursue or forego this
action.

See Craft v. Astrue, No. 1:10CV9, 2012 WL 6569021, at *1

(M.D.N.C. Dec. 17, 2012) (unpublished) (“Pro se litigants are not
held to the same high standards as attorneys.

Pro se litigants

must, however, meet certain standards, including ‘respect for court
orders without which effective judicial administration would be
impossible.’” (internal citation omitted) (quoting Ballard, 882
F.2d at 96)), recommendation adopted, slip op. (M.D.N.C. Jan. 22,
2013).
The

second

Ballard

Factor

also

favors

dismissal,

as

Plaintiff’s conduct (and inaction) prejudiced Defendant by delaying
the

litigation

unduly,

and

thus

depriving

Defendant

of

the

opportunity to defend against this lawsuit while memories remained
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freshest and before the risk of loss of pertinent documents grows.
Similarly,

the

third

Ballard

Factor

favors

dismissal,

as

Plaintiff’s submission of a document with conflicting statements
about his desire to proceed, and his subsequent failure to comply
with the Text Order seeking clarification, establish a pattern of
conduct that delays progress in this case.

See Link, 370 U.S. at

630-31 (explaining that courts may “act[] on their own initiative,
to clear their calendars of cases that have remained dormant
because of the inaction or dilatoriness of the parties seeking
relief”).
Likewise, the fourth Ballard Factor favors dismissal.

In

particular, the Text Order expressly warned Plaintiff that his
failure to comply would result in the dismissal of his case.
Text Order dated Feb. 16, 2016.)

(See

“In view of th[at] warning, the

[Court] ha[s] little alternative to dismissal.

Any other course

would have [the effect of] plac[ing] the credibility of the [C]ourt
in doubt and invit[ing] abuse.”

Ballard, 882 F.2d at 96.

For these reasons, the Court should dismiss this action.
IT IS THEREFORE RECOMMENDED that this action be dismissed
without prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
April 19, 2016
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