Opinion
C. A. 2:22-cv-00957-SAL-KFM
05-31-2022
Manetirony Clervrain, Plaintiff,[1] v. Maribel Perez Wadsworth, John Wells, Clifford Ledler, et al ., Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge
This is a civil action filed by a pro se non-prisoner plaintiff. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court. For the reasons that follow, the undersigned recommends that this case be dismissed.
LITIGATION & PROCEDURAL HISTORY
On June 23, 2021, in a prior case filed by the plaintiff, the Honorable Sherri A. Lydon, United States District Judge, issued an order sanctioning the plaintiff $402.00 for filing a frivolous action. See Clervrain v. McMaster, C/A No. 6:21-cv-00021-SAL, 2021 WL 2582216, at *2 (D.S.C. June 23, 2021). Specifically, Judge Lydon noted:
in the event [the p]laintiff attempts to file another action in this Court before payment of the sanction, the Clerk of Court is authorized to assign civil action numbers (for docket control purposes) so that the Court may (1) instruct the plaintiff to pay the sanctions (and if the sanctions are not paid, dismiss the action without prejudice and without issuance and service of process) or (2) certify that the action is not frivolous.Id. In the instant matter, the plaintiff's complaint was entered on the docket on March 23, 2022 (doc. 1). By order dated April 7, 2022, the plaintiff was informed that in order for this case to proceed he was required to pay the outstanding sanctions (or submit proof that the sanctions had been satisfied) (doc. 18 at 1-2). Specifically, the April 7, 2022, order noted that the allegations in the current action were of the same frivolous nature as the plaintiff's prior action; thus, pursuant to Judge Lydon's order, the case would be subject to dismissal unless the plaintiff paid the sanctions (Id. at 2). The order also warned the plaintiff that if he failed to comply within the timetable set forth in the order, the case would be forwarded to the assigned United States District Judge with a recommendation that it be dismissed (Id.). The plaintiff did not respond to the court's order, so on May 4, 2022, a second order was issued informing the plaintiff that his case was not in proper form (doc. 21). The plaintiff was reminded a second time if he failed to comply within the timetable set forth in the order, the case would be forwarded to the assigned United States District Judge with a recommendation that it be dismissed (Id. at 1). Despite the opportunities outlined above, the plaintiff has not brought his case into proper form for judicial screening.
APPLICABLE LAW & ANALYSIS
The plaintiff purported to file this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted,” is “frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
It is well established that a court has the authority to dismiss a case pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989). “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.” See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (emphasis added). In addition to its inherent authority, this court may also sua sponte dismiss a case for lack of prosecution under Fed.R.Civ.P. 41(b). Id. at 630. In considering whether to dismiss an action pursuant to Rule 41(b), the court is req uired to consider four factors:
(1) the degree of personal responsibility on the part of the plaintiff;
(2) the amount of prejudice to the defendant caused by the delay;
(3) the history of the plaintiff in proceeding in a dilatory manner; and,
(4) the existence of less drastic sanctions other than dismissal.Davis v. Williams, 588 F.2d 69, 70 (4th Cir.1978).
Here, the factors weigh in favor of dismissal. With respect to factors (1) and (3), as noted, despite two opportunities, the plaintiff has failed to bring his case into proper form or comply with Judge Lydon's June 23, 2021, order. In doing so, the plaintiff has failed to comply with the court's orders in this case dated April 7, 2022, and May 4, 2022 (docs. 18; 21). Each order warned the plaintiff of the consequences of failing to comply with the orders' instructions, including the dismissal of the case pursuant to Fed.R.Civ.P. 41(b) (docs. 18 at 2; 21 at 1). Despite these warnings, the plaintiff has not complied with or responded to the court's orders. Accordingly, as the plaintiff has failed to comply with multiple court orders and has been previously warned that such failures could result in dismissal, the undersigned recommends that the instant action be dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b) for failure to comply with orders of the court.
RECOMMENDATION
In light of the plaintiff's failure to bring his case into proper form, including his failure to pay the sanctions ordered by Judge Lydon on June 23, 2021, the undersigned recommends the District Court dismiss this action without prejudice and without issuance and service of process pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The plaintiff's attention is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
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 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) (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)(1); 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:
Robin L. Blume, Clerk
United States District Court
250 East North Street, Room 2300
Greenville, South Carolina 29601
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); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).