Gary v. Powers et al

Filing 62

ORDER denying 21 Motion to Stay. It is ordered that Plaintiff shall advise the court as to whether he wishes to continue with this case and to file a response to Defendant's motions for summary judgment by November 2, 2 011. Plaintiff is further advised that if he fails to respond, this action will be recommended for dismissal with prejudice for failure to prosecute. Additionally, the Clerk of Court is instructed to mail copies of the docket sheet and entries 17 , 27 , 41 , 42 , 46 , 47 , 58 , and 61 to Plaintiff at MCFP. Signed by Magistrate Judge Shiva V Hodges on 9/19/2011.(mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
William Keith Gary,
Plaintiff,
vs.
Larry Powers, Warden; and Dr. S.
Bianco, M.D.,
Defendants.

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C/A No.: 1:11-353-TLW-SVH

ORDER

Plaintiff, proceeding pro se and in forma pauperis, was a pretrial detainee
incarcerated at the Spartanburg County Detention Center (“SCDC”) at the time he filed
his complaint on February 15, 2011.

He brought this action against Larry Powers,

Warden of SCDC, and Dr. S. Bianco, M.D., a doctor at SCDC, alleging violations of 42
U.S.C. § 1983. This matter comes before the court on Plaintiff’s motion to stay filed
March 24, 2011 [Entry #21]. Plaintiff’s motion states “I am in transit and unable to
co[m]petently represent myself at this time. I have no idea where I’ll be one day [un]til
the next.” Id. Defendants have not responded to the motion to stay.
Since Plaintiff filed the motion to stay, the Clerk of Court’s office has continued to
mail all case-related documents to Plaintiff’s prior addresses [Entry #18, #24, #38] and
they have all been returned as undeliverable. [Entry #23, #32, #40]. Defendants have
moved for summary judgment [Entry #41, #46], and the court entered orders pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising him of the importance of a
motion for summary judgment and of the need for him to file an adequate response.

[Entry #42, #47]. The Roseboro orders were mailed to Plaintiff [Entry #43, #48] and were
also returned as undeliverable [Entry #53, #56].
By order of September 14, 2011, the court directed Defendants to file a status
report indicating their knowledge of Plaintiff’s custody status. Counsel for defendant
Powers timely responded, indicating that it appears Plaintiff is in the custody of the
Bureau of Prisons (“BOP”) and currently located at the U.S. Medical Center for Federal
Prisoners (“MCFP”).
Plaintiff was previously directed by order of this court dated March 7, 2011 to
keep the court apprised of any change in address:
You are ordered to always keep the Clerk of Court advised in writing [P.O.
Box 2317, Florence, South Carolina 29503] if your address changes for
any reason, so as to assure that orders or other matters that specify deadlines
for you to meet will be received by you. If as a result of your failure to
comply with this order, you fail to meet a deadline set by this court, your
case may be dismissed for violating this order. Therefore, if you have a
change of address before this case is ended, you must comply with this
order by immediately advising the Clerk of Court in writing of such change
of address and providing the court with the docket number of all pending
cases you have filed with this court. Your failure to do so will not be
excused by the court.
Put this order with your own record of this case so that you will not
overlook your duty. If your address changes in the future, you must provide
the court with your own new address.
[Entry #9] (emphasis in original).

Notwithstanding the court’s specific instructions,

Plaintiff has failed to update his address with the court.1 As such, it appears to the court
1

Although Plaintiff requested in his motion to stay that all court documents be
mailed to his wife, the court’s March 7, 2011 order noted that the Clerk of Court was to
not “enter any change of address submitted by Plaintiff which directs that mail be sent to
2

that Plaintiff does not oppose the motion to dismiss and wishes to abandon this action.
Based on the foregoing, it is ordered that Plaintiff shall advise the court as to whether he
wishes to continue with this case and to file a response to Defendant’s motions for
summary judgment by November 2, 2011. Plaintiff is further advised that if he fails to
respond, this action will be recommended for dismissal with prejudice for failure to
prosecute. See Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978); Fed. R. Civ. P. 41(b).
No extensions will be granted absent exceptional circumstances. Plaintiff’s motion to
stay [Entry #21] is denied. Additionally, the Clerk of Court is instructed to mail copies of
the docket sheet and Entries #17, #27, #41, #42, #46, #47, #58, and #61 to Plaintiff at
MCFP.
IT IS SO ORDERED.

September 19, 2011
Florence, South Carolina

Shiva V. Hodges
United States Magistrate Judge

a person other than Plaintiff unless that person is an attorney admitted to practice before
this court who has entered a formal appearance.” [Entry #9].
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