Wiggins v. Department of the Air Force et al

Filing 89

ORDER adopting 84 Report and Recommendation dismissing this action with prejudice pursuant to Rule 41(b); denying as moot 68 Motion for Summary Judgment; denying as moot 83 Motion for More Definite Statement. Signed by Honorable Richard M Gergel on 11/20/2012.(sshe, )

IN THE UNITED STATES DISTRICT CO;Q\?J' r'i ,.~~Cn~E9 ("'~

FOR THE DISTRICT OF SOUTH CAROLmA.' .. _
...
CHARLESTON DIVISION
Eric Wiggins,
Plaintiff,
vs,
Mike Donley, Secretary ofthe Department
ofthe Air Force,
Defendant.

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lOll NOV 20 A 8: liS

Civil Action No.: 2:11-1788-RMG

ORDER

This matter is before the Court on the Report and Recommendation of Magistrate Judge
Bruce Hendricks recommending that this action be dismissed with prejudice pursuant to Federal
Rule of Civil Procedure 41(b). (Dkt. No. 84). For the reasons set forth below, the Court agrees
with and adopts the Magistrate's Report and Recommendation.
Background
Plaintiff, proceeding pro se and in forma pauperis, brought this employment
discrimination action alleging violation of Title VII of the Civil Rights Act of 1964, as amended
42 U.S.C. §§ 2000e et seq. (Dkt. No. 1). This case was automatically referred to a United States
Magistrate Judge for all pretrial proceedings pursuant to the provisions of28 U.S.C. § 636(b) and
Local Civil Rule 73.02(B)(2) DSC. On July 17,2012, Defendant filed a motion to compel, (Dkt.
No. 61), which the Magistrate Judge granted on August 8, 2012. (Dkt. No. 63). On August 22,
2012, Defendant filed a motion for summary judgment. (Dkt. No. 68). On August 23,2012, the
Magistrate Judge issued a Roseboro Order directing Plaintiff to respond to Defendant's motion
within 34 days and instructing Plaintiff that the Court may grant Defendant's motion if Plaintiff
did not respond adequately by the deadline. (Dkt. No. 69).

On October 23, 2012, the Magistrate Judge issued a Report and Recommendation
("R&R").

(Dkt. No. 84).

The Magistrate Judge recommended dismissing this action with

prejudice for lack of prosecution and for failure to comply with the Court's orders. (Dkt. No. 84
at 3). On November 9,2012, Plaintiff timely filed his objections to the R&R. (Dkt. No. 87).
LawI Analysis

The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight and the responsibility for making a final determination remains with
the Court. Mathews v. Weber, 423 U.S. 261,270-71 (1976). The Court is required to make a de

novo determination of those portions of the R&R to which specific objection has been made, and
may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate." 28 U.S.C. § 636(b)(l). This Court may also "receive further evidence or recommit
the matter to the magistrate with instructions." Id
In addition, this Court is charged with liberally construing a complaint filed by a pro se
litigant to allow the development of a potentially meritorious case, see, e.g., De'Lonta v.

Angelone, 330 F.3d 630, 633 (4th Cir. 2003), but the Court cannot construct Plaintiffs legal
arguments for him. Small v. Endicot, 998 F .2d 411,417-18 (7th Cir. 1993).
Plaintiffs objections to the R&R are not responsive to the Magistrate's recommendations
or findings.

The Magistrate reported that Plaintiff did not comply with the order granting

Defendant's motion to compel discovery, and she recommended the Court to dismiss the action
based on this noncompliance. (Dkt. No. 84 at 3). Plaintiff, however, argues that "[i]t is not
reasonable to believe that plaintiff has refused to comply with court order [sic] or to even warn
of dismissal when the court has restricted or acted with strict prejudice toward an indigent
plaintiff in pro se status." (Dkt. No. 87 at 3). Plaintiff further argues that he "clearly did not

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understand what the Roseboro Order required response should have been." Id. Importantly,
Plaintiff does not provide any reasons for failing to comply with the Court's discovery order or
provide any details of his attempts to comply with that order. Further, Plaintiff does not address
why it would be improper for this Court to dismiss the action under Rule 41(b) of the Federal
Rules of Civil Procedure. See Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (stating
factors for dismissing a claim under Rule 41(b)).
Conclusion

Based on the reasoning above, this Court agrees with and adopts the R&R of the
Magistrate. Accordingly, this action is DISMISSED with prejudice pursuant to Rule 41(b) of
the Federal Rules of Civil Procedure. Because this action is dismissed with prejudice pursuant to
Rule 41(b), the Court DENIES as moot Defendant's motion for summary judgment (Dkt. No.
68) and Plaintiffs motion for more definite statement (Dkt_.__..---.:
AND IT IS SO ORDERED.

United States District C urt Judge

11,

November
2012
Charleston, South Carolina

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