Opinion
C/A No.: 5:16-cv-03394-BHH-KDW
10-03-2017
Alan Duane Rose, #313915, Petitioner, v. Warden Larry Cartledge, Respondent.
REPORT AND RECOMMENDATION
Petitioner, proceeding pro se and in forma pauperis, brought a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. On July 24, 2017, Respondent filed a Return and Motion for Summary Judgment. ECF Nos. 34, 35. As Petitioner is proceeding pro se, the court entered an order on July 25, 2017, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the importance of such motions and of the need for him to file an adequate response. ECF No. 36. Petitioner was specifically advised that if he failed to respond adequately, Respondent's Motion may be granted, thereby ending Petitioner's case. The court instructed Petitioner to file a response no later than August 25, 2017. Id. Notwithstanding the specific warning and instructions set forth in the court's Roseboro order, Petitioner failed to respond to Respondent's Motion.
On August 28, 2017, the court ordered Petitioner to advise the court whether he wished to continue with the case and to file a response to the Motion for Summary Judgment by September 28, 2017. ECF No. 40. Petitioner filed no response. As such, it appears to the court that he does not oppose Respondent's Motion and wishes to abandon this action. Based on the foregoing, the undersigned recommends Petitioner's action be dismissed with prejudice for failure to prosecute. See Fed. R. Civ. P. 41(b); Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978) (noting that a court deciding whether to dismiss a case under Fed. R. Civ. P. 41(b) must balance the policy of deciding cases on their merits against "sound judicial administration." In so doing, the court must weigh: 1) plaintiff's responsibility for failure to prosecute, 2) prejudice to defendant from delay, 3) history of delay, and 4) effectiveness of lesser sanctions.); see also Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989) (noting and applying Davis factors in dismissing case under Fed. R. Civ. P. 41(b)); Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982) (same). Based upon the above, and taking into account the factors in Davis, Ballard, and Chandler, the undersigned recommends this action be dismissed with prejudice for failure to prosecute pursuant to Fed. R. Civ. P. 41(b).
IT IS SO RECOMMENDED. October 3, 2017
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge