Brooks v. United States of America

Filing 13

MEMORANDUM OPINION AND ORDER: The Court does hereby ORDER that the Magistrate Judge's 10 Proposed Findings and Recommendation be ADOPTED except as otherwise indicates in the Court's earlier findings and that Plaintiff's 12 object ions to the Proposed Findings and Recommendation by Anthony Eugene Brooks be OVERRULED. The Court ORDERS that Plaintiff's 1 Complaint be DISMISSED WITHOUT PREJUDICE and that this matter be STRICKEN from the docket. The Court further ORDERS that any pending motions be TERMINATED AS MOOT. Signed by Judge Irene C. Berger on 7/30/2013. (cc: attys; any unrepresented party) (msa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION

ANTHONY EUGENE BROOKS,
Petitioner,
v.

CIVIL ACTION NO. 5:10-cv-01340

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER

The Court has reviewed Plaintiff’s Complaint seeking relief pursuant to the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b) and 2671, et seq., and Bivens v. Six Unknown Federal
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). (Document 1.) By Standing Order
(Document 2) entered December 1, 2010, this action was referred to the Honorable R. Clarke
VanDervort, United States Magistrate Judge, for submission of proposed findings of fact and a
recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B).
On May 29, 2013, the Magistrate Judge submitted his Proposed Findings and
Recommendation (“PF&R”) (Document 10), wherein he recommended that the Court dismiss
Plaintiff’s case without prejudice for failure to prosecute and remove this matter from the Court’s
docket. On June 17, 2013, Plaintiff filed a Motion Not to Dismiss (Document 10), which the
Court construes as his objections to the PF&R. After thorough review and consideration, the
Court finds, for the reasons stated herein, that Plaintiff’s “objections” should be overruled and the
Magistrate Judge’s PF&R should be adopted except as otherwise stated.

BACKGROUND
On November 30, 2010, Plaintiff, acting pro se, filed his Complaint pursuant to the Federal
Tort Claims Act (“FTCA”), 28 U.S.C. §§1346(b) and 2671, et seq., and Bivens v. Six Unknown
Federal Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). (Document 1.) In support,
Plaintiff alleges that a correctional officer acted negligently and with “deliberate indifference” by
“causing injury to [his] right big toe and fracturing [his] foot and [causing] ligament damage.” (Id.
at 4.) Plaintiff explains that “Officer J. White, an officer for the Bureau of Prisons, while ‘horse
playing’ with an iron door severely injured [his] right foot by suddenly releasing the held door.”
(Id. at 4.)
On April 24, 2013, Magistrate Judge VanDervort entered an order requiring Plaintiff to
either pay the $350 filing fee or file an updated Application to Proceed in Forma Pauperis by May
13, 2013. (Document 6.) He warned that failure to do so “will result in a recommendation of
dismissal of this matter without prejudice.” (Id. at 1-2.) Because Plaintiff had been released from
custody since the filing of his Complaint, Judge VanDervort found that he was required to file an
updated Application to Proceed in Forma Pauperis. (Id. at 1)1 (citing DeBlasio v. Gilmore, 315
F.3d 396 (4th Cir.2003.)) He also noted that pursuant to Rule 83.5 of the Local Rules of Civil
Procedure, “[a] pro se party must advise the clerk promptly of any changes in name, address, and
telephone number. (Id.)2

1 According to the Bureau of Prisons’ Inmate Locator, Plaintiff was released from custody on October 5, 2011.
2 On July 7, 2011, Plaintiff sent the Clerk a notice of change of address advising the Court of his new address.
(Document 3.) Then on September 29, 2011, Plaintiff sent a letter to the Clerk requesting a copy of the docket sheet
and providing his current address and a new address which he stated would be operative in twelve days. (Document 4.)
However, when the Clerk sent a copy of the April 24, 2013 Order to Plaintiff at the addresses provided, it was returned
as undeliverable three separate times. (Documents 7, 8, and 9.)

2

On May 29, 2013, Magistrate Judge VanDervort filed his PF&R (Document 10), wherein
he recommended that Plaintiff’s case be dismissed without prejudice for failure to prosecute. (Id.
at 2-4.)3 The Magistrate Judge explained that because Plaintiff had not responded to the Court’s
April 24, 2013 Order, which was entered more than a month before, he has failed to take any steps
to prosecute his case. (Id. at 2.) The Magistrate noted that Rule 41(b) of the Federal Rules of Civil
Procedure and Rule 41.1 of the Local Rules of Civil Procedure for the Southern District of West
Virginia indicate that the District Court may dismiss an action for a pro se Plaintiff’s failure to
prosecute sua sponte. (Id.)4 (citing Link v. Wabash Railroad Co., 370 U.S. 626, 629 (1962); (see
also McCargo v. Hedrick, 545 F.2d 393, 396 (4th Cir.1976); U.S. v. Moussaoui, 483 F.3d 220, 236
(4th Cir.2007).
On June 17, 2013, Plaintiff filed his “Motion not to Dismiss” (Document 12), wherein he
moves the Court “not to dismiss this action with prejudice because of the severe nature and merit
in this action.” (Id. at 1.) Plaintiff explains that upon release from a halfway house, he was
homeless until June 11, 2013. (Id.) He also provides the Court with his new address. (Id.)
Accordingly, on June 17, 2013, upon receipt of Plaintiff’s updated change of address, the clerk,
3 On June 10, 2013, the PF&R was returned as undeliverable and mailed to another address. (Document 11)
4 The Court notes that although Rule 41(b) does not itself provide that a court may dismiss a case sua sponte, a district
court has the inherent power to dismiss a case for lack of prosecution. Link., 370 U.S. at 630-31 (“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.”)
Rule 41.1 of the Local Rules of Civil Procedure provides in pertinent part:
“[w]hen it appears in any pending civil action that . . . the parties have shown no interest in further
prosecution, the judicial officer may give notice to all counsel and unrepresented parties that the
action will be dismissed 30 days after the date of the notice unless good cause for its retention on the
docket is shown. In the absence of good cause shown within that period of time, the judicial officer
may dismiss the action. The clerk shall transmit a copy of any order of dismissal to all counsel and
unrepresented party. This rule does not modify or affect provisions for dismissal of actions under FR
Civ P 41 or any other authority.

3

again, mailed the PF&R. The Court notes that Plaintiff has not responded to the PF&R.

STANDARD OF REVIEW
This Court “shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C).
However, the Court is not required to review, under a de novo or any other standard, the factual or
legal conclusions of the magistrate judge as to those portions of the findings or recommendation to
which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition, this
Court need not conduct a de novo review when a party “makes general and conclusory objections
that do not direct the Court to a specific error in the magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). When reviewing
portions of the PF&R de novo, the Court will consider the fact that Plaintiff is acting pro se, and his
pleadings will be accorded liberal construction. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe
v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978).

DISCUSSION
A. The Magistrate’s PF&R
Upon a review of the record, Magistrate Judge VanDervort found that Plaintiff’s case
should be dismissed without prejudice for failure to prosecute. (PF&R at 2.) In making this
finding, the Magistrate Judge correctly considered the applicable Fourth Circuit Court of Appeals
case law. (Id. at 3.) In Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989), the Fourth Circuit
found that a District Court should consider the following factors in determining whether a case

4

should be involuntarily dismissed for failure to prosecute:
i.

the degree of personal responsibility of the plaintiff;

ii.

the amount of prejudice caused the defendant;

iii.

the existence of a history of deliberately proceeding in a dilatory fashion; and

iv.

the existence of a sanction less drastic than dismissal.

(Id.)
With respect to the first factor, the Magistrate Judge found that Plaintiff has been the sole
cause of the delays in this action. (PF&R at 3.) He noted that: (1) Defendant has not been required
to make an appearance, (2) Plaintiff did not respond to the Court’s April 24, 2013 Order and (3) it
is Plaintiff’s responsibility to advise the clerk promptly of any change in address. (Id.)
Accordingly, the Magistrate Judge found that Plaintiff has a great degree of personal responsibility
for the delays.
With respect to the second factor, the Magistrate Judge did not find that Defendant would be
prejudiced by the dismissal of Plaintiff’s Complaint. (Id. at 4.)5 In consideration of the third factor,
he found that there is no other evidence that Plaintiff has “a history of deliberately proceeding in a
dilatory fashion.” (Id.)
With respect to the fourth factor, Magistrate Judge VanDervort recognized that dismissal is
a severe sanction. (Id.) However, he found that in this case, it is warranted because other sanctions
would be ineffective or futile. (Id.) He noted that because Plaintiff did not pay the $350 filing fee
as directed to in the Court’s April 24, 2013 Order, sanctioning him with fines, costs, or damages
would be pointless. (Id.) Moreover, he reasoned that explicit warnings of dismissal would be

5 The Court notes that the Magistrate Judge misinterpreted and misapplied this factor. (See, infra. at IV (A)).

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ineffective because the Court had previously cautioned Plaintiff, to no avail. (Id.)6 Therefore,
Judge VanDervort found that dismissal is the only proper sanction. (Id.)
In consideration of all of the above factors and the circumstances of the instant case, the
Magistrate Judge determined that Plaintiff’s Complaint should be dismissed without prejudice
unless he is able to demonstrate good cause for his failure to prosecute. (Id.) The Magistrate Judge
noted that Plaintiff will have seventeen (17) days to file specific written objections to the PF&R
and that extensions of time may be granted for good cause. (Id. at 4-5.)
B. Plaintiff’s “Objections”
On June 17, 2013, Plaintiff filed a “Motion not to Dismiss” (Document 12) in which he
moved the Court “not to dismiss this action with prejudice because of the severe nature and merit
in this action.” (Id. at 1.) In support, Plaintiff asserts that “he still suffers from permanent damage
to his big toe because of the negligence of Federal Corrections Officer J. White who purposely
held and released a metal door that tore plaintiff’s big [toe] apart injuring it very severely.”
Plaintiff argues that “it would be injustice to not prosecute for negligence and assault.” (Id.)
Plaintiff also explains that when he was released from a halfway house it “would not keep
account of [his] whereabouts no matter what address [he] left.” (Id.)7 Moreover, he contends that
he was homeless until June 11, 2013. (Id.) However, he states that he has now secured housing and
provides the Court with that new address. (Id. at 1-2.)

6 The Court’s April 24, 2013 Order warned that “[f]ailure of the Plaintiff to either pay the filing fee or file an updated
Application to Proceed in Forma Pauperis by May 13, 2013, will result in a recommendation of dismissal of this
matter without prejudice.” (Document 6 at 1-2.)
7 Plaintiff explains that he was released from a halfway house while this action was pending before the Court. (Id.)

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ANALYSIS
A. The Magistrate Judge’s PF&R
The Court finds that although the Magistrate Judge applied the correct test in determining
whether a court should involuntarily dismiss a case for failure to prosecute, he misapplied the
second factor of the test. The Magistrate Judge, citing to Ballard v. Carlson, 882 F.2d 93, 95 (4th
Cir.1989), found that the court should consider “the amount of prejudice caused the defendant.”
(PF&R at 3.) He interpreted this factor to mean “the amount of prejudice caused the defendant”
by the dismissal of Plaintiff’s Complaint. (Id. at 3-4.)8 However, earlier Fourth Circuit Court of
Appeals cases explained that a court should consider “the amount of prejudice to the defendant
caused by the delay.” McCargo v. Hendrick, 545 F.2d 393, 396 (4th Cir.1976) (emphasis added);
Davis v. Williams, 588 F.2d 69, 70 (4th Cir.1978); Reizakis v. Loy, 490 F.2d 1132, 1135-36 (4th
Cir. 1974). Later cases within this jurisdiction have followed this reading. See e.g., Gantt v.
Knight, 894 F.Supp. 226, 229 (D.Md. 1995); U.S. v. Merrill, 258 F.R.D. 302, 308 (E.D.N.C.
2009); Deakins v. Metliff Auto & Home Insurance Agency, Inc., Civil Action No. 1:08-1291, 2009
WL 1939180, at *1 (S.D.W.Va. 2009) (Faber, J.) Therefore, the Court finds that the correct
analysis for the second factor focuses on the amount of prejudice to the defendant caused by
plaintiff’s delays / failure to prosecute. (Id.)
When this factor and the others are applied to the instant case, the balance tips in favor of
dismissal. The first and fourth factors strongly favor dismissal because Plaintiff has been the sole
cause of the delays in this action, and less severe sanctions would be ineffective. (Id.) Importantly,
the Court notes that the Magistrate Judge explicitly warned Plaintiff that failure to pay the filing

8 The Magistrate Judge wrote “the Court does not find that the named Defendant will be prejudiced by dismissal of
Plaintiff’s Complaint.” (PF&R at 4.)

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fee or update his Application to Proceed in Forma Pauperis by May 13, 2013, would result in a
recommendation of dismissal of this matter without prejudice. (PF&R at 1-2) (quoting Document
6.) The second and third factors counsel against dismissal because the record does not specifically
indicate that Defendant has been prejudiced by the delays in this case and there is no evidence that
Plaintiff has a “drawn-out history of deliberately proceeding in a dilatory fashion.” (Id.) However,
in balancing all of the factors and considering the particular facts of this case, the Court finds that
dismissal without prejudice is warranted.
B. Plaintiff’s Objections
In consideration of Plaintiff’s pro se status and the “sound public policy of deciding cases
on their merits[,]” the Court construes Plaintiff’s “Motion Not to Dismiss” as his objections to the
PF&R. Choice Hotels Intern., Inc. v. Goodwin & Boone, 11 F.3d 469, 473 (4th Cir1993) (quoting
Herbert v. Saffel, 877 F.2d 267, 269 (4th Cir.1989); Estelle 429 U.S. at 106 (noting that pro se
documents are to be liberally construed). Nevertheless, the Court finds that Plaintiff’s objections
should be overruled.
As stated above, this Court is not required to review the factual or legal conclusions of the
magistrate judge as to those portions of the findings or recommendation to which no objections are
addressed. Thomas, 474 U.S. at 150. Because Plaintiff’s “Motion not to Dismiss” does not
direct the Court to any specific error in, or any portion of, the Magistrate's PF&R, the Court finds
that Plaintiff’s objections should be overruled. Orpiano, 687 F.2d at 47.
Even if the Court were to construe Plaintiff’s explanation of his housing situation as an
objection to the PF&R, the Court finds that Plaintiff has failed to show good cause for his failure to
prosecute his case. Plaintiff states that the halfway house “would not keep account of [his]
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whereabouts no matter what address [he] left.” (Document 12 at 1.) However, the halfway house
has no legal obligation to “keep account of [his] whereabouts.” (Id.) Pursuant to Rule 83.5 of the
Local Rules of Civil Procedure, it is Plaintiff’s responsibility to advise the court of any change of
address. L.R. Civ.P. 83.5. Plaintiff also states that he was homeless. (Id.) He is presumably
arguing that he could not receive documents from the Court because of his housing situation.
Although the Court sympathizes with Plaintiff’s situation, the Court finds that he has not shown
good cause for his failure to prosecute. Here, the Court notes that Plaintiff did not respond to
court documents even when he did have housing. Although the PF&R was mailed again and sent
to the address provided in his “Motion Not to Dismiss,” Plaintiff still did not file any response.
Therefore, even if the Court were to find that Plaintiff’s housing situation demonstrated good
cause for not responding to the Court’s April 24, 2013 Order, Plaintiff has not shown good cause
for not responding to the PF&R. His failure to respond is yet another example of his failure to
prosecute his case. Therefore, the Court finds that Plaintiff’s objections should be overruled.

CONCLUSION
Based upon the findings herein, the Court does hereby ORDER that the Magistrate
Judge’s Proposed Findings and Recommendation (Document 10) be ADOPTED except as
otherwise indicated in the Court’s earlier findings and that Plaintiff’s objections to the PF&R
(Document 12) be OVERRULED. The Court ORDERS that Plaintiff’s Complaint (Document
1) be DISMISSED WITHOUT PREJUDICE and that this matter be STRICKEN from the
docket. The Court further ORDERS that any pending motions be TERMINATED AS MOOT.

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Finally, the Court DIRECTS the Clerk to send a copy of this Order to counsel of record
and to any unrepresented party.
ENTER:

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July 30, 2013