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Sayre v. Stevens Correctional Facility

United States District Court, S.D. West Virginia, Bluefield Division

February 9, 2018

KENNY SAYRE, Plaintiff,
v.
STEVENS CORRECTIONAL FACILITY, Defendant.

          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 ...

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