Chestnut v. Thompson et al

Filing 51

ORDER directing the Plaintiff to provide evidentiary support within the next thirty (30) days for his allegations that he submitted his response brief to the prison authorities on March 19, 2014. Defendants will also have thirty (30) days to file any additional evidence relevant to this issue.(Evidentiary Support due by 5/30/2014.) Signed by Honorable R Bryan Harwell on 4/30/2014. (abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Raymond Edward Chestnut,

)
)
Plaintiff,
)
)
v.
)
)
United States of America; Rory
)
Thompson, Correctional Officer; T.
)
McGirt, Correctional Office; and
)
LeRoy Jones, individually and in their )
official capacities,
)
)
Defendants.
)
)

Civil Action No.: 1:13-cv-1870-RBH

ORDER

Plaintiff Raymond Edward Chestnut (“Plaintiff”), a federal prisoner proceeding pro se, filed
this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388, 397 (1971) (“Bivens”). See Compl., ECF No. 1. In response, Defendants filed a motion
to dismiss, or in the alternative, for summary judgment. See Mot., ECF No. 33. The matter is now
before the Court after the issuance of the Report and Recommendation (“R & R”) of United States
Magistrate Judge Shiva V. Hodges.1 In the R & R, the Magistrate Judge recommends that the Court
dismiss the action pursuant to Rule 41(b) of the Federal Rules of Civil Procedure (“FRCP”) for
failure to prosecute. See R & R, ECF No. 40 at 2.
The Magistrate Judge makes only a recommendation to the Court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with the Court.
Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The Court is charged with making a de novo
determination of those portions of the R & R to which specific objection is made, and the Court

1

In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02 (D.S.C.), this matter was
referred to the Magistrate Judge for pretrial handling.

may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or
recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
The right to de novo review may be waived by the failure to file timely objections. Orpiano
v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The Court need not conduct a de novo review when a
party makes only “general and conclusory objections that do not direct the [C]ourt to a specific
error in the [M]agistrate’s proposed findings and recommendations.” Id. Moreover, in the absence
of objections to the R & R, the Court is not required to give any explanation for adopting the
recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). However, in the absence of
objections, the Court must “‘satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.’” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d
310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
Defendants filed their motion on November 8, 2013. Because Plaintiff is proceeding pro se,
the Court entered an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
advising him of the importance of the potentially dispositive motion and the need to file an adequate
response. See Order, ECF No. 34. The Order specifically indicated that if Plaintiff failed to
adequately respond, Defendants’ motion may be granted. See id. The Order instructed Plaintiff to
respond by December 16, 2013. On November 18, 2013, the Clerk of Court’s office received a one
page letter from Plaintiff indicating that he wished “to advise that [he is] unable to respond to the
defendant’s motion.” See ECF No. 36 at 1. On December 18, 2013, the Clerk of Court’s office
received another one page letter from Plaintiff again indicating that he “is unable to respectively
respond” to Defendants’ motion. See ECF No. 37 at 1.
The Court received no further response from Plaintiff. Accordingly, on March 5, 2014,
nearly four months after Defendants filed their motion, the Court issued another Order directing

2

Plaintiff to respond if he wished to continue prosecuting this matter. This Order directed Plaintiff to
file a response to Defendants’ motion by March 19, 2014, and advised Plaintiff that no further
extensions would be granted. See id. at 2. The Order also explained to Plaintiff that failure to
respond would result in the Magistrate Judge recommending the Court dismiss this action for failure
to prosecute. See id. As of March 24, 2014, the Court had yet to receive a response from Plaintiff.
Therefore, due to Plaintiff’s failure to file any response—aside from his letters asserting that he was
unable to properly respond—the Magistrate Judge issued her R & R on March 24, 2014. In the R &
R, she recommended that the matter be dismissed for failure to prosecute. See ECF No. 40. The R
& R directed the Plaintiff to file any objections by April 10, 2014.
On March 27, 2014, the Clerk of Court’s office received a letter which inquired as to
whether the Court received Plaintiff’s response in opposition to Defendants’ motion, which Plaintiff
alleges he gave prison authorities on March 19, 2014. See ECF No. 42 at 1. The Court then
received Plaintiff’s response in opposition to Defendants motion on March 31, 2013. See Resp. to
Defs. Mot., ECF No. 43. The cover letter to the response, dated March 25, 2014, asserts that
Plaintiff provided his response to prison authorities on March 19, 2014, but that it was returned to
him on March 25, 2014 for additional postage. See id. at 43-1 at 1. Plaintiff, however, has provided
no evidentiary proof that he actually gave his response to the prison authorities on March 19, 2014.
The only envelope provided was stamped by the prison on March 26, 2014. See id. at 43-3 at 1–2.
There is no indication that the package was returned for lack of postage, and Plaintiff has not
provided anything showing a date March 19, 2014, aside from his own unsupported claims.
The Court is mindful of the “prison mailbox rule” as set forth by the Supreme Court in
Houston v. Lack, which provides that pro se prisoner’s pleading or notice of appeal is deemed filed
at the moment of delivery to prison authorities for forwarding to district court. See Houston v.

3

Lack, 487 U.S. 255, 276 (1988). This Court has applied this principle to responses in opposition to
summary judgment as well.

See, e.g., Richards v. Cartledge, No. 3:11-738-RBH, 2012 WL

488825, at *1 (D.S.C. Feb. 15, 2012). The prison mailbox rule, however, is not absolute and the
Court need not simply take a prisoner at his word. Courts from within the Fourth Circuit have
found it appropriate when:
a Court does not receive a pleading within a reasonable time after the
date upon which the inmate claims to have mailed it, it is appropriate
to require independent proof of the mailing date, such as mail logs,
prison trust fund records, or receipts for postage, before giving the
inmate the benefit of the prison mailbox rule.
Roberts v. McKenzie, No. AW-12-cv-2474, 2013 WL 3179102, at *4 (D. Md. June 20, 2013)
(emphasis added); see also Lewis v. United States, No. 7:07cv00514, 2008 WL 190763 (W.D. Va.
Jan. 21, 2008) (noting the same). The Fifth Circuit has specifically held that the prison mailbox rule
“does not relieve a prisoner from doing all that he can reasonably do to ensure that the clerk of court
receives documents in a timely manner,” and that “[f]ailure to place proper postage on outgoing
prison mail does not constitute compliance with this standard.” Hodges v. Frazier, No. 97-50917,
1999 WL 155667, at *1 (5th Cir. 1999).
The Court notes that there is no reliable proof that Plaintiff gave his response in opposition
to summary judgment to prison officials on March 19, 2014, aside from his own self-serving,
unsworn allegations that he did. The only evidence in the record establishes that Plaintiff mailed his
response on March 26, 2014. Based on the record before the Court, therefore, Plaintiff’s response is
untimely. Plaintiff is no stranger to the federal courts,2 and is undoubtedly aware of the importance

2

Currently, Plaintiff has three separate civil actions pending before the undersigned: the above
captioned action (No. 1:13-cv-01870-RBH); Chestnut v. McCoy (No. 1:13-cv-01814-RBH-SVH);
and Chestnut v. Singleton (No. 1:13-cv-02250-RBH-SVH). Plaintiff also filed several civil actions
which have already been closed by the Court. See, e.g., Chestnut v. Thompson (No. 1:12-cv-0259RBH) and Chestnut v. Thomas (No. 1:13-cv-2249-RBH).
4

of adhering to the timing requirements specified by the FRCP and the Orders of this Court.
Nevertheless, the Court will afford Plaintiff thirty (30) days from the date of this order to provide
evidentiary support for his allegations that he submitted his response brief to the prison authorities
on March 19, 2014. Defendants will also have thirty (30) days to file any additional evidence
relevant to this issue. As of now, there is insufficient evidence to support Plaintiff’s allegations that
his response brief was timely.
IT IS SO ORDERED.

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Florence, South Carolina
May 1, 2014

5