Bangert v. Awai et al

Filing 41

ORDER RULING ON REPORT AND RECOMMENDATION 37 . The Court DECLINES TO ADOPT the Report and Recommendation insofar as it recommends dismissal with prejudice; the Court otherwise ADOPTS the Report and Recommendation. The complaint is DISMISSED WITHOUT PREJUDICE. Signed by Honorable Richard M Gergel on 4/2/2018. (kric, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Charles Stanley Bangert, Jr.,
Plaintiff,
v.
Jackie Awai and Southern Health,
Defendants.

Civil Action No. 6:17-2551-RMG

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ORDER AND OPINION

This matter is before the Court on the Report and Recommendation of the Magistrate Judge
recommending the complaint be summarily dismissed under Rule 41(b) of the Federal Rules of
Civil Procedure for failure to prosecute. Plaintiff was a pretrial detainee at the Cherokee County
Detention Center, charged with narcotics possession. Plaintiffs allegations are as follows. While
detained, Nurse Jackie Awai, an employee of Southern Health, tried to give him incorrect blood
pressure medication that had not been prescribed for him. When he refused to take that mediation,
Nurse Awai placed him in solitary confinement where, due to high blood pressure, a panic attack
caused him to pass out and hit his head, rendering him unconscious. He was then taken to a
hospital, where he was told that his uncontrolled blood pressure nearly caused a heart attack. Since
that incident, medical personnel at the detention center have retaliated by continuing to provide
incorrect blood pressure medication while otherwise withholding medical care.
Plaintiff filed this action on September 19, 2017. On February 8, 2018, Defendants moved
for summary judgment and the Court issued a Roseboro order directing Plaintiff to respond. That
order was mailed to Plaintiff but was returned as undeliverable. On March 13 , 2018 , the Magistrate
Judge recommended summary dismissal under Rule 41(b). Again, Plaintiff has not responded.
Public records show that Plaintiff bonded out of the Cherokee County Detention Center on or about

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January 10, 2018. Plaintiff has not provided the Court his current address, and so neither the Court
nor Defendants have any means to communicate with Plaintiff.
Although the Report and Recommendation does not explicitly state whether the complaint
should be dismissed with or without prejudice, its recitation of the four factors the Fourth Circuit
provides for dismissal with prejudice and its application of those factors implies the
recommendation is for dismissal with prejudice. (Dkt. No. 37 at 2-3 (citing Davis v. Williams,
588 F.2d 69, 70 (4th Cir. 1978).) The Court agrees that dismissal is appropriate, but declines to
dismiss with prejudice. In Davis, the Fourth Circuit cautioned "dismissal with prejudice is a harsh
sanction which should not be invoked lightly in view of the sound public policy of deciding cases
on their merits." 588 F.2d at 70 (internal quotation marks omitted). The Court finds that dismissal
with prejudice of Plaintiffs claims would be an unnecessarily harsh sanction for his failure to
update his address with the Court within two months of his release from jail. In this case, there is
no '" drawn out history' of ' deliberately proceeding in a dilatory fashion ;'" and dismissal without
prejudice is an available and effective sanction less drastic than dismissal with prejudice. Id
The Court therefore ADOPTS IN PART AND DECLINES TO ADOPT IN PART the
Report and Recommendation of the Magistrate Judge (Dkt. No. 37) as the Order of the Court. The
Court DECLINES TO ADOPT the Report and Recommendation insofar as it recommends
dismissal with prejudice; the Court otherwise ADOPTS the Report and Recommendation. The
complaint is DISMISSED WITHOUT PREJUDICE.
AND IT IS SO ORDERED.

Richard Mark Gergel
United States District Court Judge

~ <- , 2018

Charleston, South Carolina

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