Black v. Masano

Filing 41

REPORT AND RECOMMENDATION recommending that this case be dismissed with prejudice pursuant to Fed.R.Civ.P. 41(b). Objections to R&R due by 8/27/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. Signed by Magistrate Judge Thomas E Rogers, III on 08/13/2018. (Attachments: # 1 Notice of Right to File Objections)(dsto, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
DAVID ALLEN BLACK,

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Plaintiff,
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-vs)
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JOHN F. MARANO, IV,
)
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Defendant.
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___________________________________ )
I.

Civil Action No.: 4:17-cv-3265-TMC-TER

REPORT AND RECOMMENDATION

INTRODUCTION
Plaintiff, who is proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983, alleging

Defendants violated his constitutional rights. Presently before the court is Defendant’s Motion for
Summary Judgment (ECF No. 29). Because Plaintiff is proceeding pro se, he was advised pursuant
to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendant’s
motion could result in dismissal of his Complaint. Plaintiff has not filed a response. All pretrial
proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. §
636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), DSC. This report and recommendation is
entered for review by the district judge.
II.

RULE 41(b) DISMISSAL
“The Federal Rules of Civil Procedure 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. Fed.R.Civ.P. 41(b).” Ballard v. Carlson, 882 F.2d 93, 95
(4th Cir.1989). “Federal courts possess an inherent authority to dismiss cases with prejudice sua
sponte.” Gantt v. Maryland Division of Correction, 894 F.Supp. 226, 229 (D.Md. 1995) (citing Link

v. Wabash R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); White v. Raymark Industs.,
Inc., 783 F.2d 1175 (4th Cir.1986); Zaczek v. Fauquier County, Va., 764 F.Supp. 1071, 1074
(E.D.Va.1991)).
The Fourth Circuit, in Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978), recognizing that
dismissal with prejudice is a harsh sanction which should not be invoked lightly, set forth four
considerations in determining whether Rule 41(b) dismissal is appropriate: (1) the degree of
personal responsibility on the part of the plaintiff; (2) the amount of prejudice to the defendant
caused by the delay; (3) the presence or absence of a drawn out history of deliberately proceeding
in a dilatory fashion; and (4) the effectiveness of sanctions less drastic than dismissal. Id. at 70.
Subsequently, however, the Fourth Circuit noted that “the four factors ... are not a rigid
four-pronged test.” Ballard, 882 F.2d at 95. “Here, we think the Magistrate’s explicit warning that
a recommendation of dismissal would result from failure to obey his order is a critical fact that
distinguishes this case from those cited by appellant. . . . In view of the warning, the district court
had little alternative to dismissal. Any other course would have placed the credibility of the court
in doubt and invited abuse.” Id. at 95-96.
In the present case, Plaintiff is proceeding pro se and, thus, is entirely responsible for his
actions. It is solely through Plaintiff’s neglect, and not that of an attorney, that Plaintiff has failed
to prosecute this case. All mail sent to Plaintiff from the Court since this case was filed has been
returned as undeliverable, including the Order (ECF No. 6) authorizing service of process and
directing Plaintiff to always keep the Clerk of Court advised of any address changes. The Order
warned Plaintiff that “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.” Because of
Plaintiff’s failure to update the court with his current address, he has failed to respond to the present
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Motion for Summary Judgment. Although Plaintiff never received the Order directing him to notify
the court of any change of address, the undersigned can only conclude based on his failure to do so
or to otherwise correspond with this court since he filed his complaint on December 1, 2017, that
Plaintiff has abandoned his claims against Defendants. No other conclusion is reasonable.
III.

CONCLUSION
For the reasons discussed above, it is recommended that this case be dismissed with prejudice

pursuant to Fed.R.Civ.P. 41(b).

s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge
August 13, 2018
Florence, South Carolina
The parties are directed to the important information on the following page.

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