Littleton v. Peterson et al
Filing
37
ORDER RULING ON REPORT AND RECOMMENDATION for 31 Report and Recommendation. The court ADOPTS the Report (ECF No. 31 ) and DISMISSES this action with prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). Signed by Honorable Timothy M Cain on 1/7/21. (kmca)
7:20-cv-01506-TMC
Date Filed 01/07/21
Entry Number 37
Page 1 of 5
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
SPARTANBURG DIVISION
Mitchell Seth Littleton,
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Plaintiff,
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v.
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Joseph B. Peterson and Jeffery Cole, )
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Defendants.
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________________________________)
Civ. Action No. 7:20-cv-1506-TMC
ORDER
Plaintiff Mitchell Seth Littleton, proceeding pro se, filed this action seeking
relief against Defendants Joseph B. Peterson and Jeffery Cole pursuant to 42 U.S.C.
§ 1983. (ECF No. 1). In accordance with 28 U.S.C. § 636(b)(1) and Local Civil
Rule 73.02(B)(2)(d) (D.S.C.), this matter was referred to a magistrate judge for all
pretrial proceedings. Now before the court is the Report and Recommendation
(“Report”) of the magistrate judge recommending that this action be dismissed with
prejudice under Rule 41(b) of the Federal Rules of Civil Procedure for lack of
prosecution. (ECF No. 31).
At the time Littleton filed this action, he was a prisoner at the Cherokee
County Detention Center (“CCDC”) in Gaffney, South Carolina, and provided
CCDC’s address to the court. (ECF No. 1 at 2). On April 27, 2020, the court entered
an order specifically directing Littleton to advise the Clerk’s Office in writing of any
change in his address and warned that the failure to do so could result in the dismissal
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of his action for violation of a court order. (ECF No. 7 at 3). The order was mailed
to Littleton at the CCDC address he provided the court and was not returned as
undeliverable. (ECF No. 8). Accordingly, Littleton is presumed to have received the
order. On May 29, 2020, the court entered an order authorizing service of process
and apprising Defendants of the deadline to file dispositive motions. (ECF No. 13).
This order was likewise sent by U.S. Mail to Littleton at CCDC and, again, not
returned as undeliverable. (ECF No. 14).
On August 24, 2020, the magistrate judge entered a text order granting
Defendants an extension of time to file dispositive motions. (ECF No. 22). The order
granting an extension was mailed to Littleton at the same CCDC address, but this
time was returned to the clerk’s office marked “Return to Sender, Attempted - Not
Known, Unable to Forward.” (ECF Nos. 23, 24). Therefore, on September 30, 2020,
the magistrate judge issued an order finding that Littleton “has failed to keep the
Clerk of Court advised of his current address” and requiring that Littleton “provide
his current address in writing to the Clerk of Court” by October 14, 2020. (ECF No.
26). Additionally, the order warned Littleton that if he failed to provide his correct
address by that time, his action would “be subject to dismissal pursuant to Rule
41(b)” and that “the dismissal will be considered an adjudication on the merits, i.e.,
with prejudice.” Id. at 1, 2. The order was again sent to the CCDC address Littleton
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provided the court—the only address for Littleton on file—and it was once again
returned as undeliverable with “not here” written on the envelope. (ECF No. 29).
On October 22, 2020, the magistrate issued a Report recommending that this
court dismiss Littleton’s action with prejudice under Rule 41(b) for failure to
prosecute. (ECF No. 31 at 3). The Report advised Littleton of his right to file specific
objections to the findings, conclusions and recommendations set forth in the Report
and warned him of the consequences of failing to do so. Id. at 4. The Report was
mailed to Littleton at the address he provided the court, (ECF No. 32), and, as before,
it was returned to the clerk’s office marked “return to sender,” “not here,” and
“unable to forward.” (ECF No. 34). Littleton has not objected to the Report and the
time for doing so has expired.
The magistrate judge makes only a recommendation to the court. The Report
has no presumptive weight and the responsibility to make a final determination in
this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 270–71
(1976). In the absence of objections, this court is not required to provide an
explanation for adopting the Report. See Camby v. Davis, 718 F.2d 198, 199 (4th
Cir. 1983). Rather, “in the absence of a timely filed objection, a district court need
not conduct a de novo review, but instead must only satisfy itself that there is no
clear error on the face of the record in order to accept the recommendation.”
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Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(quoting Fed. R. Civ. P. 72 advisory committee’s note).
After a careful and thorough review of the record under the appropriate
standards, as set forth above, the court adopts the Report. (ECF No. 31). It is well
established that a court has the authority to dismiss a case pursuant to Federal Rule
of Civil Procedure 41(b) for failure to prosecute or failure to comply with orders of
the court. See Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989). “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). In considering whether to dismiss an action pursuant to Rule 41(b), the court
should consider four factors:
(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 [plaintiff’s history of] proceeding in a dilatory fashion; and
(4) the effectiveness of sanctions less drastic than dismissal.
Davis v. Williams, 588 F.2d 69, 70 (4th Cir.1978) (internal quotation marks omitted).
These four factors “are not a rigid four-pronged test,” and the decision to dismiss
depends on the particular circumstances of the case. Ballard, 882 F.2d at 95. For
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example, in Ballard, the court reasoned that “the Magistrate’s explicit warning that
a recommendation of dismissal would result from failure to obey his order” was an
important factor supporting dismissal. See id. at 95–96.
Having considered the record in light of the applicable factors, the court
concludes that it is appropriate to dismiss this action. As explained by the magistrate
judge, Littleton was proceeding pro se and, therefore, “entirely responsible for his
actions”—“[i]t is solely through [Littleton’s] neglect, and not that of an attorney,
that he has failed to keep the Clerk of Court notified of his current address.”
(ECF No. 31 at 2). The court ADOPTS the Report (ECF No. 31) and DISMISSES
this action with prejudice for failure to prosecute pursuant to Federal Rule of Civil
Procedure 41(b).
IT IS SO ORDERED.
s/ Timothy M. Cain
United States District Judge
January 7, 2021
Anderson, South Carolina
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