United States District Court, S.D. West Virginia, Bluefield Division
PROPOSED FINDINGS AND RECOMMENDATION
Omar
J. Aboulhosn United States Magistrate Judge.
On
January 7, 2016, Plaintiff, acting pro se and
incarcerated at Northern Correctional Facility, located in
Moundsville, West Virginia, filed his Complaint in this
matter claiming entitlement to relief pursuant to 42 U.S.C.
§ 1983. (Document No. 1.) In his Complaint, Plaintiff
alleged that Stevens Correctional Facility violated his
rights under the Eighth Amendment of the United States
Constitution by failing to protect him from assaults by other
inmates. (Id.)
By
Order entered on January 11, 2016, the undersigned ordered
that Plaintiff shall have until February 8, 2016 to (1) amend
his Complaint to name individual defendants and state
specific facts as to how each defendant violated his
constitutional rights, and (2) either pay the Court's
filing fee ($350) and administrative fee ($50) totaling $400
or file the Application to Proceed in Forma
Pauperis and other documents as required by 28 U.S.C.
§ 1915(a)(1) and (2). (Document No. 4.) The undersigned
further notified Plaintiff as follows:
Failure of the Plaintiff to (1) amend his Complaint, and (2)
either pay the filing and administrative fee or file an
Application to Proceed in Forma Pauperis by February
8, 2016, will result in a recommendation of dismissal of this
matter without prejudice pursuant to 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.
(Id.)
On
January 27, 2016, Plaintiff filed a “Motion for
Extension of Time to Respond to Order.” (Document No.
6.) By Order entered on January 28, 2016, the undersigned
granted Plaintiff's Motion for Extension of Time and
directed Plaintiff to “(1) amend his Complaint, and (2)
either pay the filing and administrative fee totaling $400 or
file an Application to Proceed in Forma
Pauperis by February 28, 2016.” (Document No.
8.)
On
February 16, 2016, Plaintiff filed a letter-form Motion for
Access to the Courts.[1](Document No. 9.) By Order entered on
February 17, 2016, the undersigned construed Plaintiff's
above letter-form Motion for Access to the Courts as an
attempt to initiate a civil action under pursuant to 42
U.S.C. § 1983 and directed the Clerk to open a new civil
action and include therein a copy of Plaintiff's
letter-form Motion for Access to the Courts. (Document No.
10.) Plaintiff's new action was assigned Civil Action No.
1:16-cv-01645. By Order entered on February 18, 2016, the
undersigned transferred Civil Action No. 1:16-cv-01645 to the
United States District Court for the Northern District of
West Virginia after determining such was the proper venue for
claims set forth in the action. (Civil Action 1:16-cv-01645,
Document No. 3.)
Plaintiff
has not responded to the Court's Order enter more than
two-years ago in the above action directing Plaintiff to
“(1) amend his Complaint, and (2) either pay the filing
and administrative fee totaling $400 or file an Application
to Proceed in Forma Pauperis by February 28,
2016.” Accordingly, the undersigned has determined that
Plaintiff has failed to take any steps to prosecute this
action, and therefore, Plaintiff's Complaint in this case
should be dismissed.
ANALYSIS
Pursuant
to 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, District Courts possess
the inherent power to dismiss an action for a pro se
Plaintiff's failure to prosecute sua
sponte.[2] See Link v. Wabash Railroad
Co., 370 U.S. 626, 629, 82 S.Ct. 1386, 1388, 8 L.Ed.2d
734 (1962). Rule 41.1 of the Local Rules provides:
Dismissal of Actions. When it appears in any
pending civil action that the principal issues have been
adjudicated or have become moot, or 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 parties. This rule
does not modify or affect provisions for dismissal of actions
under FR Civ P 41 or any other authority.
Although
the propriety of a dismissal “depends on the particular
circumstances of the case, ” in determining whether to
dismiss a case involuntarily for want of prosecution, the
District Court should consider the following four factors:
(i) the degree of personal responsibility of the ...