Wright v. Thomas
ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; finding as moot 46 Motion to Dismiss. The Petition is DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule of CivilProcedure 41(b). Signed by Honorable Mary Geiger Lewis on 8/10/2017.(cwhi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
WARDEN L. THOMAS,
§ CIVIL ACTION NO. 9:14-3734-MGL-BM
ORDER DISMISSING THE PETITION PURSUANT TO
FEDERAL RULE OF CIVIL PROCEDURE 41(B)
Petitioner filed this as a 28 U.S.C. § 2241 action. He is proceeding pro se.
At the outset of the action, the Magistrate Judge directed Petitioner to keep the Clerk abreast
of any address changes and warned him his “case may be dismissed for violating th[e] Order.” ECF
No. 5-2 (emphasis omitted). Nevertheless, inasmuch as the Post Office returned Petitioner’s mail to
the Clerk on May 12, 2017, marked “NOT DELIVERABLE AS ADDRESSED[,]” ECF No. 43, it
appears Petitioner has failed to follow the Magistrate Judge’s Order regarding any change of address.
Then, on June 16, 2017, Respondent filed a motion to dismiss, or in the alternative, to transfer
this case (Respondent’s motion). ECF No. 46. As per a June 19, 2017, Order of the Magistrate Judge,
under Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Magistrate Judge advised Petitioner
(1) he had thirty-one days from the date of the Order to file his response to Respondent’s motion, (2)
of the summary judgment/dismissal procedure, and (3) the possible consequences if he failed to
respond adequately. ECF No. 48. Despite this explanation, Petitioner failed to respond to the motion.
“The Federal Rules of Civil Procedure recognize that courts must have the authority to control
litigation before them, and this authority includes the power to order dismissal of an action for failure
to comply with court orders.” Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (citing Fed. R.
Civ. P. 41(b)). The Fourth Circuit, in Davis v. Williams, recognizing dismissal is a harsh sanction
that should not be invoked lightly, set forth four factors for determining whether Rule 41(b) dismissal
is appropriate: “(1) the degree of personal responsibility [by] the [petitioner]; (2) the amount of
prejudice to the [respondent] caused by the delay; (3) the presence or absence of a drawn out history
of deliberately proceeding in a dilatory fashion and (4) the effectiveness of sanctions less drastic than
dismissal.” 588 F.2d 69, 70 (4th Cir. 1978).
The Fourth Circuit subsequently noted “the four factors . . . are not a rigid four-pronged test,”
and whether to dismiss depends on the particular circumstances of the case. Ballard, 882 F.2d at 95.
For example, in Ballard, the court reasoned “the Magistrate's explicit warning that a recommendation
of dismissal would result from failure to obey his order is a critical fact that distinguishes this case
from those cited by appellant. . . . In view of the warning, the district court had little alternative to
dismissal. Any other course would have placed the credibility of the court in doubt and invited
abuse.” Id. at 95–96.
Petitioner has had over a month and a half to respond to Respondent’s motion, yet he has
failed to do so. Because Petitioner is proceeding pro se, he is personally responsible for his failure.
Despite being advised of the possible consequences if he neglected adequately to respond, Petitioner
elected not to do so. Inasmuch as Petitioner has ignored Court Orders and deadlines, both regarding
the filing of a response and notifying the Clerk of any address change, sanctions less drastic than
dismissal would be ineffective.
Wherefore, based upon the particular circumstances of this case, it is the judgment of the Court
the Petition should be DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule of Civil
Procedure 41(b). This necessarily RENDERS AS MOOT Respondent’s motion.
To the extent Petitioner moves for a certificate of appealability, such request is DENIED.
IT IS SO ORDERED.
Signed this 9th day of August, 2017, in Columbia, South Carolina.
s/ Mary Geiger Lewis
MARY GEIGER LEWIS
UNITED STATES DISTRICT JUDGE
NOTICE OF RIGHT TO APPEAL
Petitioner is hereby notified of the right to appeal this Order within sixty days from the date
hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.
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