Smoot v. McCall

Filing 23

REPORT AND RECOMMENDATION of Magistrate Judge Bristow Marchant. It is recommended that this action be dismissed with prejudice for lack of prosecution. Further details set forth in Order. Objections to R&R due by 7/26/2013. Signed by Magistrate Judge Bristow Marchant on 7/9/2013. (cwhi, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

Coressel Antiwan Smoot, #263901,
Petitioner,

v.
Warden McCall,
Respondent.

) Civil Action No. 9: 13-0214-GRA-BM
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)
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) REPORT AND RECOMMENDATION
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The pro se Petitioner brought this action seeking relief pursuant to Title 28, United
States Code, Section 2254. On April 17,2013, the Respondent filed a motion for summary judgment.
As the Petitioner is proceeding pro se, a Roseboro Order was entered by the Court on April 18, 2013,
advising Petitioner of the importance of a dispositive motion and of the need for him to file an
adequate response. Petitioner was specifically advised that if he failed to file a properly supported
response, the Respondent's motion may be granted, thereby ending his case.
Petitioner requested an extension oftime to respond, which was granted by Order filed
May 2, 2013. However, notwithstanding the extension granted and the specific warning and
instructions as set forth in the Court's Roseboro order, the Petitioner has failed to respond to the
motion, or to contact the Court in any way.
Based on the foregoing, the undersigned finds that Petitioner meets all ofthe criteria
for dismissal under Chandler Leasing Corp. V. Lopez, 669 F.2d 929 (4th Cir. 1982).1 Accordingly,
He is personally responsible for proceeding in a dilatory fashion, the Respondent is suffering
prejudice due to having to expend time and resources on a case in which the Petitioner is
unresponsive, and no sanctions other than dismissal appear to exist as the Petitioner is indigent (and
1

it is recommended that this action be dismissed with prejudice for lack of prosecution. See Davis v.
Williams, 588 F.2d 69, 70 (4th Cir. 1978); Rule 41(b), Fed.R.Civ.P.

The Clerk shall mail this Report and Recommendation to Petitioner at his last
known address. If the Petitioner notifies the Court within the time set forth for filing
objections to this Report and Recommendation that he wishes to continue with this case and
provides a response to the motion for summary judgment, the Clerk is directed to vacate this
Report and Recommendation and return this file to the undersigned for further handling. If,
however, no objections are filed, the Clerk shall forward this Report and Recommendation to the
District Judge for disposition. Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989),

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 plaintif
The parties are referred to the Notice Page

~omp ly despi te warning].

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July
2013
Charleston, South Carolina

therefore not subject to monetary sanctions) and he has otherwise failed to respond to Court filings
despite Court orders requiring him to do so. Lopez, 669 F.2d at 920.
After a litigant has received one explicit warning as to the consequences offailing to timely
comply with an order of a Magistrate Judge, and has failed to respond to that order, the district court
may, under Fed.R.Civ.P. 41 (b), dismiss the complaint based upon the litigant's failure to comply
with that court order. See Simpson v. Welch, 900 F.2d 33, 35-36 (4th Cir.1990); see also Ballard,
882 F.2d at 95-96 (holding that district court's dismissal following an explicit and reasonable
warning was not an abuse of discretion).
21

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 Judge. Objections must specifically identify the portions of the
Report and Recommendation to which objections are made and the basis for such objections. "[I]n
the absence ofa 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 & Ace. Ins. Co., 416 F .3d 31 0 (4th Cir. 2005) (quoting
Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of
this Report and Recommendation. 28 U.S.C. § 636(b)(I); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P.
6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by
mailing objections to:
Larry W. Propes, Clerk

United States District Court

Post Office Box 835

Charleston, South Carolina 29402

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)(l); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins,
766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).