Escalante v. McFadden

Filing 28

ORDER: Petitioner is directed to advise the court whether he wishes to continue with this case and to file a response to Respondent's Motion for Summary Judgment 22 by December 9, 2013. Petitioner is further advised that if he fails to respond, this action against Respondent will be recommended for dismissal with prejudice for failure to prosecute. Signed by Magistrate Judge Kaymani D West on 11/21/2013. (mcot, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Rafael Escalante Placencia,
aka Rafael Mendoza Escalante,

Plaintiff,
v.

Joseph McFadden, Warden,

Defendant.

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C/A No. 5:13-cv-01795-DCN-KDW

ORDER

Petitioner, proceeding pro se and in forma pauperis, brought this action seeking
habeas corpus relief under 28 U.S.C. § 2254. Respondent filed a Motion for Summary
Judgment on October 8, 2013. ECF No. 22. As Petitioner is proceeding pro se, the court
entered an order on October 9, 2013, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975), advising Petitioner of the importance of a motion for summary judgment and of
the need for him to file an adequate response. ECF No. 24. Petitioner was informed that his
response was due by November 15, 2013, and was specifically advised that if he failed to
respond adequately, Respondent’s motion may be granted, thereby ending his case.
Notwithstanding the specific warning and instructions set forth in the court’s
Roseboro order, Petitioner has failed to respond to the motion. As such, it appears to the
court that Petitioner does not oppose the motion and wishes to abandon his action against
Respondent. Based on the foregoing, Petitioner is directed to advise the court whether he
wishes to continue with this case and to file a response to Respondent’s Motion for Summary
Judgment by December 9, 2013. Petitioner is further advised that if he fails to respond, this

action against Respondent 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).
IT IS SO ORDERED.

November 21, 2013
Florence, South Carolina

Kaymani D. West
United States Magistrate Judge