United States District Court, S.D. West Virginia, Charleston
PROPOSED FINDINGS AND RECOMMENDATION
L. Tinsley, United States Magistrate Judge.
matter is assigned to the Honorable Joseph R. Goodwin, 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).
December 23, 2016, the plaintiff, who at that time was
incarcerated at the Mount Olive Correctional Complex, in
Mount Olive, 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 Amendment of
the United States Constitution, arising out of a use of force
against him on July 9, 2016.
to the filing of his Application and Complaint, the plaintiff
was released from custody, but he did not provide updated
contact information to the court. On October 26, 2017, after
contacting the West Virginia Division of Corrections'
Parole Services Division and obtaining the most recent
address provided for the plaintiff, the undersigned entered
an Order and Notice (ECF No. 9) directing the plaintiff to
complete a new Application by November 9, 2017, so that the
court could ascertain his noncustodial financial status. A
blank Application was also provided with the Order and
Notice. However, the court's Order and Notice contained a
typographical error concerning the plaintiff's address
and that mailing was returned as undeliverable on December 1,
2017. (ECF No. 10). Thus, on December 4, 2017, the
undersigned entered an Amended Order and Notice (ECF 11)
directing the plaintiff to file a new Application by December
undersigned's Amended 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. Since the entry and delivery of the
undersigned's Amended Order and Notice, which has not
come back as undeliverable, the plaintiff has not filed a new
Application or participated in this litigation in any manner.
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.
Thus, to date, the defendants have not suffered any direct
the plaintiff's release from prison, he did not provide
the court with his updated contact information and he has
since failed to comply with the court's Order to file the
updated Application paperwork. Accordingly, it appears that
the plaintiff no longer wishes to pursue this matter; that
the responsibility for the delay in the progress of this
matter is entirely on the plaintiff; and that dismissal
appears to be the only appropriate sanction. However, because
the defendants were never served with process, a dismissal
without prejudice may be less drastic.
undersigned proposes that the presiding District Judge
FIND that, nothwithstanding the
undersigned's explicit warning that the failure to comply
with the undersigned's Amended Order and Notice could
result in a recommendation of dismissal, the plaintiff did
not comply with the undersigned's Amended Order and
Notice and has wholly failed to prosecute this civil action.
Therefore, 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 and DENY AS MOOT his initial
Application to Proceed Without Prepayment of Fees and Costs
(ECF No. 1).
plaintiff is notified that this Proposed Findings and
Recommendation is hereby FILED, and a copy
will be submitted to the Honorable Joseph R. Goodwin, 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
Proposed Findings and Recommendation within which to file
with the Clerk of this Court, specific written objections,
identifying the portions of this Proposed Findings and
Recommendation to which objection is made, and the basis of
such objection. Extension of this time period may be granted
by the presiding District Judge for good cause shown.
to file written objections as set forth above shall
constitute a waiver of de novo review by the
District Court and a waiver of appellate review by the
Circuit Court of Appeals. Snyder v. Ridenour, 889
F.2d 1363 (4th Cir. 1989); 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). Copies of such objections shall be served on
Clerk is directed to file this Proposed Findings and
Recommendation and to mail a copy of the same to the
plaintiff at the ...