Nesmith v. Schwartz et al

Filing 26

REPORT AND RECOMMENDATION recommending 1 Complaint filed by Christopher Nesmith be dismissed for lack of prosecution. Objections to R&R due by 1/7/2010. Signed by Magistrate Judge William M Catoe on 12/21/09. (ladd, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA GREENVILLE DIVISION C h ris to p h e r Nesmith, Plaintiff, vs. M ic h a e l Schwartz, et al., Defendants. ) ) ) ) ) ) ) ) ) ) Civil Action No. 6:09-1867-JFA-W M C REPORT OF MAGISTRATE JUDGE

T h e plaintiff brought this action seeking relief pursuant to Title 42, United States C o d e , Section 1983. On October 5, 2009, the defendants filed a motion to dismiss or, in the a lte rn a tiv e , for summary judgment. On October 5, 2009, pursuant to Roseboro v. Garrison, 5 2 8 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the summary judgment dismissal p ro c e d u re and the possible consequences if he failed to respond. Despite this explanation, th e plaintiff elected not to respond to the motion.

As the plaintiff is proceeding pro se, the court filed a second order on November 19, 2009, giving the plaintiff through December 14, 2009, to file his response to the motion to dismiss or, in the alternative, for summary judgment. The plaintiff was specifically advised that if he failed to respond, this action would be dismissed for failure to prosecute. The plaintiff elected not to respond. Based on the foregoing, it appears the plaintiff no longer wishes to pursue this action. Accordingly, it is recommended that this action be dismissed for lack of prosecution pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989), cert. denied, 493 U.S. 1084 (1990).

D e c e m b e r 21, 2009 G r e e n v ille , South Carolina

s /W illia m M. Catoe U n ite d States Magistrate Judge