The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Marion Lamont Brown, Jr., ) C/A No.: 1:24-cv-4001-JFA-SVH
#00318025, )
)
Plaintiff, )
) REPORT AND
vs. ) RECOMMENDATION
)
Sargent Jahmel Williams, )
)
Defendant. )
)
Marion Lamont Brown, Jr. (“Plaintiff”), proceeding pro se, filed this
complaint pursuant to 42 U.S.C. § 1983 against Sergeant Jahmel Williams
(“Defendant”). Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule
73.02(B)(2)(d) (D.S.C.), the undersigned is authorized to review such
complaints for relief and submit findings and recommendations to the district
judge. For the following reasons, the undersigned recommends the district
judge dismiss the complaint without prejudice.
I. Factual and Procedural Background
Plaintiff is state prisoner incarcerated at Lee Correctional Institution.
[ECF No. 1 at 2]. He alleges that on February 15, 2024, Defendant sprayed him
with mace and slammed his hand in his jail cell’s food slot after he complained
he did not receive a breakfast tray and stated he would not remove his hand
from the slot until he was permitted to speak with his mental health counselor.
at 5–7. He claims he experienced burning, temporary loss of eyesight, and
an overall decline in his vision. at 6. He states he also experienced burning,
bruises, scratches, and swelling in his hand, vomited blood, and had difficulty
breathing. at 6, 7. He alleges he was denied medical attention and an
opportunity to decontaminate and was subjected to disciplinary action related
to the incident. He maintains Defendant violated his Eighth and
Fourteenth Amendment rights. at 4.
On August 2, 2024, the court issued a proper form order advising
Plaintiff that he had failed to pay a filing fee or motion to proceed in forma
pauperis and had not properly complete documents required for service of
process. [ECF No. 5]. The order permitted Plaintiff until August 23, 2024, to:
(1) either pay the filing fee or complete, sign, and return an Application to
Proceed Without Prepayment of Fees and Affidavit (“Form AO 240”); (2)
complete a summons form; and (3) complete forms USM-285 for each
defendant. at 1–2. The order warned: “If Plaintiff does not bring this case
into proper form within the time permitted by this order, this case may be
dismissed for failure to prosecute and failure to comply with a court order
under Rule 41 of the Federal Rules of Civil Procedure.” at 1.
A review of the docket reveals Plaintiff has not paid the filing fee, filed
Form AO 240, or provided documents required for service of process. It further
indicates that no mail sent to Plaintiff’s address of record has been returned to
the court. Thus, it appears Plaintiff received and failed to respond to the court’s
prior orders.
It is well established that a district court has authority to dismiss a case
for failure to prosecute. “The authority of a court to dismiss sua sponte for lack
of prosecution has generally been considered an ‘inherent power,’ governed not
by rule or statute but by the control necessarily vested in courts to manage
their own affairs so as to achieve the orderly and expeditious disposition of
cases.” , 370 U.S. 626, 630–31 (1962). In addition
to its inherent authority, this court may also sua sponte dismiss a case for lack
of prosecution under Fed. R. Civ. P. 41(b). at 630.
Based on Plaintiff’s failure to respond to the court’s August 2, 2024
orders, the undersigned concludes he does not intend to pursue the above-
captioned matter. Accordingly, the undersigned recommends this case be
dismissed without prejudice for failure to prosecute pursuant to Fed. R. Civ. P.
41(b).
If Plaintiff pays the filing fee or returns Form AO 240 and provides
documents required for service of process within the time set for filing
objections to this Report and Recommendation, the Clerk is directed to vacate
this Report and Recommendation and return the file to the undersigned for
further action. If, however, Plaintiff fails to take such action, the Clerk shall
forward this Report and Recommendation to the district judge for disposition.
IT IS SO RECOMMENDED.
PP Ut Slalger
August 29, 2024 Shiva V. Hodges
Columbia, South Carolina United States Magistrate Judge
The parties are directed to note the important information in the attached
“Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to
this Report and Recommendation with the District Judge. Objections must
specifically identify the portions of the Report and Recommendation to which
objections are made and the basis for such objections. “[I]n the absence of a
timely filed objection, a district court need not conduct a de novo review, but
instead must ‘only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.’”
, 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory
committee’s note).
Specific written objections must be filed within fourteen (14) days of the
date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72(b); Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal
Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and
Recommendation will result in waiver of the right to appeal from a judgment
of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1);
, 474 U.S. 140 (1985); , 766 F.2d 841 (4th Cir.
1985); , 727 F.2d 91 (4th Cir. 1984).