Funderburk v. Johnson et al
Filing
83
ORDER RULING ON REPORT AND RECOMMENDATION: The court ACCEPTS the Report in its entirety (ECF No. 72 ), and incorporates it herein. Accordingly, the court DISMISSES this action. IT IS SO ORDERED. Signed by Honorable J Michelle Childs on 08/01/2022. (dsto, )
4:20-cv-02903-JMC
Date Filed 08/01/22
Entry Number 83
Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Paris Laquisha Funderburk,
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Plaintiff,
v.
Deputy Johnson, Deputy N. Vinson, Deputy
William Ballew, Deputy Josh Gillespie, Major
Freeman, Captain Hayes, Captain Cody,
Lieutenant Wilson, Lieutenant Dulcos,
Lieutenant Cunningham, and Lieutenant
Hollifield,
Defendant.
Civil Action No.: 4:20-cv-2903-JMC
This matter is before the court upon review of the Magistrate Judge’s Report and
Recommendation (“Report”) (ECF No. 72), filed on March 9, 2022, recommending the court
dismiss this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41. (Id. at
2.) For the reasons below, the court ACCEPTS the Magistrate Judge’s Report (ECF No. 72) and
DISMISSES this action.
Plaintiff Paris Laquisha Funderburk filed this civil rights action pro se1 against the abovenamed defendants on August 10, 2020. (ECF No. 1.) Defendants filed a Motion for Summary
Judgment on October 20, 2021. (ECF No. 59.) Because Plaintiff is a pro se litigant, the Magistrate
Judge issued an order pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), advising
“Because he is a pro se litigant, Plaintiff’s pleadings are construed liberally by the court and held
to a less stringent standard than attorneys’ formal pleadings.” Simpson v. Florence Cnty. Complex
Solic.’s Off., No.: 4:19-cv-03095-JMC, 2019 WL 7288801, at *2 (D.S.C. Dec. 30, 2019) (citing
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). “This, however, ‘does not transform
the court into an advocate’ for Plaintiff; the court is not required to recognize Plaintiff’s claims if
there is clearly no factual basis supporting them.” Id. (quoting Weller v. Dep’t of Soc. Servs., 901
F.2d 387, 391 (4th Cir. 1990)).
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Plaintiff that a failure to respond to Defendants’ motion could result in the motion being granted
and her claims against the remaining Defendants dismissed. (ECF No. 60.) In the order, the
Magistrate Judge directed Plaintiff to file any materials in opposition to Defendants’ Motion for
Summary Judgment within thirty-one (31) days from the date of the order. (Id. at 1.) Although
she was granted three (3) extensions to respond to the Motion for Summary Judgment (see ECF
Nos. 66, 75, 80), Plaintiff did not file a response. The Magistrate Judge’s Roseboro Order was
mailed to Plaintiff on October 21, 2021 and was not returned as undeliverable. (See ECF No. 61.)
The court therefore presumes Plaintiff received the order but neglected to comply within the time
permitted. The Magistrate Judge issued the Report on March 9, 2022, recommending the court
dismiss the case for failure to prosecute and informing the parties of their right to file objections
to the Report. (ECF No. 3–4.) None of the parties filed objections.
The Magistrate Judge makes only a recommendation to this court. The responsibility to
make a final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270–71
(1976). The court reviews de novo only those portions of a magistrate judge’s report and
recommendation to which specific objections are filed and reviews those portions which are not
objected to–including those portions to which only “general and conclusory” objections have been
made–for clear error. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005);
Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.
1982). The court may accept, reject, or modify, in whole or in part, the recommendation of the
magistrate judge or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
Plaintiff’s lack of response indicates an intent to not prosecute this case, and subjects the
case to dismissal. See Fed. R. Civ. P. 41(b) (district courts may dismiss an action if a plaintiff fails
to comply with an order of the court); see also Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989)
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(dismissal with prejudice appropriate where warning given); Chandler Leasing Corp v. Lopez, 669
F.2d 919, 920 (4th Cir. 1982) (court may dismiss sua sponte). “The court has ‘inherent power to
manage its docket in the interests of justice.’” Luberda v. Purdue Fredrick Corp., No. 4:13-cv00897, 2013 WL 12157548, at *1 (D.S.C. May 31, 2013). It also has the authority expressly
recognized in Rule 41(b) to dismiss actions for failure to prosecute. Fed. R. Civ. P. 41(b). “The
authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an
‘inherent power,’ governed not by rule or statute but by the control necessarily vested in courts to
manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Link
v. Wabash R.R. Co., 370 U.S. 626, 630–31 (1962).
A review of the record indicates that the Magistrate Judge specifically informed Plaintiff
that if she failed to comply with the Magistrate Judge’s instructions, this case would be subject to
dismissal. Thus, having thoroughly reviewed the Report and the record under the appropriate
standards and, finding no clear error, the court ACCEPTS the Report in its entirety (ECF No. 72),
and incorporates it herein. Accordingly, the court DISMISSES this action.
IT IS SO ORDERED.
United States District Judge
August 1, 2022
Columbia, South Carolina
NOTICE OF RIGHT TO APPEAL
The plaintiff is hereby notified of the right to appeal this order pursuant to Rules 3 and 4
of the Federal Rules of Appellate Procedure.
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