Hairston v. Martinsville City Jail et al

Filing 19

ORDER DISMISSING CASE without prejudice for failure to prosecute. Signed by District Judge Elizabeth K. Dillon on 7/15/2015. (slt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
RICHARD EDWARD HAIRSTON
Plaintiff,
v.
MARTINSVILLE CITY JAIL, et al,
Defendant(s).

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Case No. 7:15CV00126
ORDER
By: Elizabeth K. Dillon
United States District Judge

This matter is before the court upon defendants’ Motion to Dismiss, filed June 4, 2015.
On June 5, 2015, the court mailed a notice advising Mr. Hairston that the court would give him
21 days to submit any further counter-affidavits or other relevant evidence contradicting,
explaining, or avoiding defendant’s evidence before ruling on defendants’ motion. The notice
warned Mr. Hairston:
If Plaintiff does not respond to Defendant[s’] pleadings, the Court will assume
that Plaintiff has lost interest in the case, and/or that Plaintiff agrees with what the
Defendant[s] state[ ] in their responsive pleading(s). If Plaintiff wishes to continue
with the case, it is necessary that Plaintiff respond in an appropriate fashion.
Plaintiff may wish to respond with counter-affidavits or other additional evidence
as outlined above. However, if Plaintiff does not file some response within the
twenty-one (21) day period, the Court may dismiss the case for failure to
prosecute.
(Notice, ECF No. 18) (emphasis in original.)
Since mailing the notice to Mr. Hairston, the court has received no further
communication from him about this case, and the deadline for his response to defendants’
motion has passed. Accordingly, the court finds that, pursuant to Rule 41(b) of the Federal Rules
of Civil Procedure, Mr. Hairston has failed to prosecute this action. See generally. Ballard v.
Carlson, 882 F.2d 93 (4th Cir. 1989) (explicit warning of dismissal is significant factor).

The court having duly notified the parties that Mr. Hairston’s failure to respond to
defendant’s dispositive motion would be interpreted as failure to prosecute and would be cause
for dismissal of the action without prejudice, it is hereby ORDERED that this action is
DISMISSED without prejudice for failure to prosecute; defendants’ motion (ECF No. 16) is
DISMISSED without prejudice; and the action is stricken from the active docket of the court.
Mr. Hairston is advised that if he intends to proceed with this action, he must petition the
court within 30 days of the entry of this order for a reinstatement of this action. Any motion for
reinstatement should provide specific explanation for Mr. Hairston’s failure to respond in a
timely fashion to defendants’ dispositive motion.
The Clerk is directed to send a copy of this order to the plaintiff and to counsel of record
for the defendants.
Entered: July 15, 2015

Elizabeth K. Dillon
United States District Judge

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