McPherson v. Kutz et al

Filing 57

ORDER adopting the 53 REPORT AND RECOMMENDATION and dismissing the 1 Complaint with prejudice. Signed by Honorable Richard M Gergel on 3/9/2016. (bgoo)

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

Sanchez Ozell McPherson,

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Civil Action No. 0:15-1859-RMG

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Plaintiff,

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v.
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SPO M. Kutz, Officer, Charleston Police
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Department, Detective Osburne, Charleston)
Police Department,
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Defendants.
)

ORDER

This matter is before the Court on the Report and Recommendation of the Magistrate
Judge, recommending that the Complaint be dismissed with prejudice for lack ofprosecution. The
Court adopts the Report and Recommendation and dismisses the Complaint with prejudice.
Plaintiff alleges that he was arrested on March 7, 2008, for armed robbery. (Dkt. No.1 at
3). During the booking process, $730 was removed from Plaintiffs person. (Id.) Plaintiff pled
guilty to carrying a firearm, and the armed robbery count was dismissed. (Id. at 4). Plaintiff
alleges that his money has never been returned, in violation of the Due Process Clause. He seeks
return of the $730. (ld.).
Plaintiff filed the present action on May 1, 2015. Certain Defendants were dismissed by
this Court's Order dated July 15, 2015. The remaining Defendants, two members ofthe Charleston
Police Department, moved to dismiss for failure to state a claim on November 5, 2015. 1 Plaintiff

1 Although the Court does not rule on Defendants' motion to dismiss-because Plaintiff has ceased
to prosecute this action-Defendants' arguments appear compelling. Defendants assert that
Plaintiffs claim, filed eight years after the money was seized, is time-barred; that S.C. Code § 15­
69-20 provides an adequate post-deprivation remedy; that Plaintiff himself alleges the money was
transferred to Federal custody, placing it beyond the control of the named Defendants; and that
Defendants enjoy qualified immunity. (See Dkt. No. 37-1.)

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has never responded to that motion. The Magistrate Judge caused a Roseboro order to be sent to
Plaintiff on November 6, 20 15 (ordering Plaintiff to respond by December 11,2015), on December
15,2015, again ordered Plaintiff to respond (by December 29,2015), and on February 1,2016,
again ordered Plaintiff to respond (by February 17, 2016). On February 19,2016, the Magistrate
Judge recommended dismissal with prejudice for lack of prosecution. Plaintiff has filed no
objections. Plaintiffs only acknowledgement of the pending motion to dismiss is his motion for
appointment of counsel (filed January 4, 2016), a repetition of his motion of June 8, 2015, which
was denied on August 3, 2015.
This case meets the criteria for dismissal with prejudice given in Chandler Leasing Corp.
v. Lopez, 669 F.2d 919 (4th Cir. 1982). Plaintiff is personally responsible for proceeding in a
dilatory fashion, having failed to comply with three orders to respond over a period offive months.
His refusal is prejudicial to Defendants, causing them to continue to incur legal expenses. No
sanctions appear to exist other than dismissal, given the previous warnings and extensions
provided.
Therefore, the Court ADOPTS the Report and Recommendation (Dkt. No. 53) and
DISMISSES WITH PREJUDICE the Complaint (Dkt. No.1).
AND IT IS SO ORDERED.

United States District Court Judge

March

L, 2016

Charleston, South Carolina

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