United States District Court, S.D. West Virginia, Charleston
ERIC D. AYERS, Plaintiff,
CORPORAL SINGLETON, et al., Defendants.
SECOND PROPOSED FINDINGS AND RECOMMENDATION
L. Tinsley, United States Magistrate Judge
matter is assigned to the Honorable John T. Copenhaver, Jr.,
United States District Judge, and it is referred to the
undersigned United States Magistrate Judge for submission of
proposed findings and a recommendation for disposition,
pursuant to 28 U.S.C. § 636(b)(1)(B).
November 20, 2014, the plaintiff, who at that time was
incarcerated at the Huttonsville Correctional Center, in
Huttonsville, West Virginia, filed an Application to Proceed
Without Prepayment of Fees and Costs (hereinafter
“Application”) (ECF No. 1), and a Complaint under
42 U.S.C. § 1983 (ECF No. 2) alleging that the
defendants violated his rights under the Eighth and
Fourteenth Amendments of the United States Constitution,
arising out of a use of force against the plaintiff on April
18, 2014, while he was incarcerated at the South Central
Regional Jail in Charleston, West Virginia. The
plaintiff's Complaint also asserts state law claims of
assault and battery and intentional infliction of emotional
distress (also called the tort of outrage).
to the filing of his Application and Complaint, the plaintiff
was released from custody and he provided updated contact
information. The undersigned then entered an Order and Notice
denying the plaintiff's first Application to Proceed
Without Prepayment of Fees and Costs (ECF No. 1) without
prejudice and directing the plaintiff to complete a new
Application by June 17, 2016, so that the court could
ascertain his non-custodial financial status. A blank
Application was also provided with the Order and Notice.
undersigned's Order and Notice notified the plaintiff
that the failure to file a new Application as ordered may
result in a recommendation to the presiding District Judge
that this matter be dismissed for failure to prosecute. The
plaintiff did not file a new Application within the time
ordered and did not otherwise have any contact with the
the plaintiff had not complied with the Order to complete a
new Application and had not made any contact with the court
after entry thereof, on March 27, 2017, the undersigned
submitted a Proposed Findings and Recommendation recommending
that the presiding District Judge dismiss this matter,
without prejudice, for failure to prosecute. (ECF No. 7).
However, on July 12, 2017, the Clerk received correspondence
from the plaintiff indicating that he was then incarcerated
at the Metro Detention Center in Albuquerque, New Mexico, and
requesting the status of his case and “the form I need
to file and return to your court for my settlement.”
(ECF No. 9).
the plaintiff's letter as an indication that the
plaintiff still intended to pursue this matter, on October
19, 2017, the presiding District Judge declined to adopt the
undersigned's Proposed Findings and Recommendation and
again referred the matter to the undersigned for further
proceedings. On October 23, 2017, the undersigned entered a
new Order and Notice directing the plaintiff to file a new
Application to Proceed Without Prepayment of Fees and Costs
by November 27, 2017, which was mailed to the plaintiff at
the Metro Detention Center in Albuquerque, New Mexico, as
indicated in his letter.
on October 30, 2017, and November 3, 2017, respectively, the
presiding District Judge's Memorandum Opinion and Order
of October 19, 2017, and the undersigned's Order and
Notice of October 23, 2017, were returned as undeliverable
stating the plaintiff was “Not in custody.” (ECF
Nos. 12 and 13). The undersigned's staff subsequently
contacted the Metro Detention Center and determined that the
plaintiff had been released from custody and no forwarding
address was able to be provided. Thus, the plaintiff's
whereabouts are again unknown.
41(b) of the Federal Rules of Civil Procedure provides for
the dismissal of an action for the plaintiff's failure to
prosecute or to comply with the court's rules or orders.
See Link v. Wabash R. Co., 370 U.S. 626, 629 (1962)
(“The authority of a federal trial court to dismiss a
plaintiff's action with prejudice because of his failure
to prosecute cannot seriously be doubted.”); see
also McCargo v. Hedrick, 545 F.2d 393 (4th
Cir. 1976). However, in determining whether such a harsh
sanction is appropriate, the court must balance the following
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 in prosecution; (3) the
presence or absence of a history of plaintiff deliberately
proceeding in a dilatory fashion; and (4) the effectiveness
of sanctions less drastic than dismissal. Davis v.
Williams, 588 F.2d 69, 70 (4th Cir. 1978).
“A district court need not engage in a rigid
application of this test, however, when a litigant has
ignored an express warning that failure to comply with an
order will result in the dismissal of his claim.”
Taylor v. Huffman, No. 95-6380, 1997 WL 407801, at
*1 (4th Cir. 1997) (unpublished).
defendants have not been served with process in this matter
because the plaintiff has not paid the applicable filing fee
or filed the appropriate paperwork to enable the court to
determine whether he may proceed in forma pauperis.
As set forth above, the plaintiff has a history of proceeding
in a dilatory fashion in this matter and he has been
expressly warned that his failure to comply with the
undersigned's Order could result in the recommended
dismissal of this matter. Given that the plaintiff's
whereabouts are unknown, the court is left with little option
other than to dismiss this matter for failure to prosecute.
it is respectfully RECOMMENDED that the
presiding District Judge DISMISS this
matter, without prejudice, for failure to prosecute, pursuant
to Rule 41(b) of the Federal Rules of Civil Procedure.
plaintiff is notified that this Second Proposed Findings and
Recommendation is hereby FILED, and a copy
will be submitted to the Honorable John T. Copenhaver, Jr.,
United States District Judge. Pursuant to the provisions of
Title 28, United States Code, Section 636(b)(1)(C), and Rules
6(d) and 72(b), Federal Rules of Civil Procedure, the
plaintiff shall have fourteen days (filing of objections) and
then three days (service/mailing), from the date of filing
this Second Proposed Findings and Recommendation within which
to file with the Clerk of this Court, specific written
objections, identifying the portions of this Second Proposed
Findings and ...