Simon v. Meyers et al

Filing 30

REPORT AND RECOMMENDATIONS of Magistrate Judge Bristow Marchant that it is recommended that this action be dismissed withprejudice for lack of prosecution. 17 1 Objections to R&R due by 9/22/2008. Signed by Magistrate Judge Bristow Marchant on 9/4/08. (ahen, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

JOVAN C. SIMON,

) ) Plaintiff, ) Civil Action No. 0:08-751-SB-BM ) v. ) ) LIEUTENANT MEYERS, ) REPORT AND RECOMMENDATION SARGENT JAY HECHANOVA, ) MAJOR JOEY JOHNSON, ) DIRECTOR TOM FOX, ) ) Defendants. ) ______________________________) The Plaintiff has filed this action, pro se, seeking relief pursuant to 42 U.S.C. § 1983. Plaintiff, formerly a pretrial detainee at the J. Reuben Long Detention Center, alleges violations of his constitutional rights by the named Defendants. The Defendants filed a motion for summary judgment on May 19, 2008, pursuant to Rule 56, Fed.R.Civ.P.. As the Plaintiff is proceeding pro se, a Roseboro order was entered by the Court, advising Plaintiff of the importance of a motion for summary judgment and of the need for him to file an adequate response. Plaintiff was specifically advised that if he failed to respond adequately, the Defendants' motion may be granted, thereby ending his case. However, notwithstanding the specific warning and instructions as set forth in the Court's Roseboro order, the Plaintiff failed to respond to the motion. As the Plaintiff is proceeding pro se, the court filed a second order on August 13, 2008, advising Plaintiff that it appeared to the

Court that he was not opposing the motion and wished to abandon this action, but giving the Plaintiff an additional ten (10) days in which to file his response to the Defendants' motion for summary

judgment. The Plaintiff was further specifically warned that if he failed to respond, this action would be recommended for dismissal with prejudice for failure to prosecute. Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978); Rule 41(b) Fed.R.Civ.P. Notwithstanding this second warning, the Plaintiff still failed to file any response.1 Therefore, Plaintiff meets all of the criteria for dismissal under Chandler Leasing Corp.v. Lopez, 669 F.2d 919 (4th Cir. 1982).2 Accordingly, it is recommended that this action be dismissed with prejudice for lack of prosecution. See Davis, 558 F.2d at 70; Rule 41(b), Fed.R.Civ.P.; Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989), cert. denied sub nom, Ballard v. Volunteers of America, 493 U.S. 1084 (1990) [Magistrate Judge's prior explicit warning that a recommendation of dismissal would result from plaintiff failing to obey his order was proper grounds for the district court to dismiss suit when plaintiff did not comply despite warning]. The parties are referred to the Notice Page attached hereto.

__________________________ Bristow Marchant United States Magistrate Judge Columbia, South Carolina September 4, 2008

The docket reflects that Plaintiff called the Clerk's office on August 21, 2008 and was told that he needed to put something in writing and file it with the Court, but nothing has ever been filed.
1

He is personally responsible for proceeding in a dilatory fashion, the Defendants are suffering prejudice by continuing to have these claims clouding their careers and continuing to incur legal expenses, and no sanctions appear to exist other than dismissal given the previous warnings and extensions provided. Lopez, 669 F.2d at 920.
2

Notice of Right to File Objections to Report and Recommendation The parties are advised that they may file specific written objections to this Report and Recommendation with the District Court Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. 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." Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005). Specific written objections must be filed within ten (10) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The time calculation of this ten-day period excludes weekends and holidays and provides for an additional three (3) days for filing by mail. Fed. R. Civ. P. 6(a) & (e). Filing by mail pursuant to Fed. R. Civ. P. 5 may be accomplished by mailing objections to: Larry W. Propes, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201 Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985).