Opinion

Brown v. Wagner

Court
District Court, D. South Carolina
Filed
May 6, 2025
Cited by
0 cases
Authority
More cited than 36.2%

The opinion

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRICT OF SOUTH CAROLINA

ANDERSON/GREENWOOD DIVISION

Tommy Dwayne Brown, )

) Civil Action No. 8:24-cv-4076-BHH-KFM

Plaintiff, )

) REPORT OF MAGISTRATE JUDGE

vs. )

)

P. Wagner, )

)

Defendant. )

)

The plaintiff, a pretrial detainee proceeding pro se and in forma pauperis,

brought this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional

rights. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and Local Civil Rule

73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in

cases filed under Section 1983 and submit findings and recommendations to the district

court.

At the time of the filing of his complaint on July 22, 2024, the plaintiff was a

pretrial detainee at the Anderson County Detention Center (“the Detention Center”) (doc.

1). By order filed November 14, 2024, the plaintiff was informed that his complaint (other

than his excessive force and unlawful search and seizure claims against defendant

Wagner) was subject to summary dismissal because it failed to state a claim upon which

relief may be granted and that he could attempt to cure the defects identified in his

complaint by filing an amended complaint within fourteen days (doc. 22). The plaintiff was

informed that if he failed to file an amended complaint or otherwise cure the deficiencies

outlined in the order, the undersigned would recommend that his case be dismissed (other

than the claims against defendant Wagner) (id. at 8–9). The plaintiff failed to file an

amended complaint within the time provided; accordingly, on December 13, 2024, the

undersigned recommended that the plaintiff’s claims be dismissed (other than his excessive

force and unlawful search and seizure claims against defendant Wagner) (doc. 26).

Service was authorized as to defendant Wagner only (doc. 24). The Honorable Bruce

Howe Hendricks, United States District Judge, adopted that recommendation on January

9, 2025 (doc. 34).

On February 3, 2025, Judge Hendricks’ order, which was mailed by the Clerk

of Court to the plaintiff at the Detention Center, was returned marked “Return to Sender.

Attempted - Not Known. Unable to Forward” (doc. 36). On March 21, 2025, the

undersigned’s order granting the defendant’s motion for extension of time to file dispositive

motions, which was also mailed to the plaintiff at the Detention Center, was also returned

(doc. 41). In three separate orders, the undersigned has ordered the plaintiff to always keep

the Clerk of Court advised in writing if his address changes for any reason, and he was

specifically warned that his “failure to do so will not be excused by the Court” (docs. 5, 10,

16). Accordingly, on April 10, 2025, the undersigned issued an order giving the plaintiff

through May 2, 2025, to show cause why this action should not be dismissed for failure to

prosecute and for failure to comply with an order of this court under Federal Rule of Civil

Procedure 41(b). The plaintiff was advised that if he failed to respond, this action will be

subject to dismissal for failure to prosecute pursuant to Rule 41(b), and the dismissal will

be considered an adjudication on the merits, i.e., with prejudice. On April 29, 2025, the

order, which was also mailed by the Clerk of Court to the plaintiff at the Detention Center,

was returned marked “Return to Sender. Not Deliverable as Addressed. Unable to Forward”

(doc. 49). The plaintiff has not responded to the order to show cause.

A complaint may be dismissed pursuant to Rule 41(b) for failure to prosecute

and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93, 95 (4th

Cir.1989). In considering whether to dismiss an action pursuant to Rule 41(b), the court is

required to consider four factors:

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(1) the degree of personal responsibility on the part of the

plaintiff;

(2) the amount of prejudice to the defendant caused by the

delay;

(3) the history of the plaintiff in proceeding in a dilatory manner;

and,

(4) the existence of less drastic sanctions other than dismissal.

Davis v. Williams, 588 F.2d 69, 70 (4th Cir.1978) (citing McCargo v. Hedrick, 545 F.2d 393,

396 (4th Cir. 1976)). These four factors “are not a rigid four-pronged test,” and whether to

dismiss depends on the particular circumstances of the case. Ballard, 882 F.2d at 95. For

example, in Ballard, the court reasoned that “the Magistrate’s explicit warning that a

recommendation of dismissal would result from failure to obey his order” was an important

factor supporting dismissal. Id. at 95–96 (citation omitted).

In the present case, the plaintiff is proceeding pro se, and he is thus entirely

responsible for his own actions. It is solely through the plaintiff's neglect, and not that of an

attorney, that no response has been filed. Meanwhile, the defendant is left to wonder when

the action will be resolved. The plaintiff has not responded to the court’s order to show

cause why this action should not be dismissed for failure to prosecute. Accordingly, the

undersigned concludes the plaintiff has abandoned this lawsuit. No other reasonable

sanctions are available.

Based on the foregoing, it appears the plaintiff no longer wishes to pursue this

action. Accordingly, it is recommended that this action be dismissed for lack of prosecution

pursuant to Rule 41(b). The Clerk of Court shall immediately mail this report to the plaintiff.

If the plaintiff notifies the court within the time set forth for filing objections to this report that

he wishes to continue with this case and complies with the court's prior order, the Clerk of

Court is directed to vacate this report and return this case to the undersigned for further

handling. If, however, the plaintiff does not file objections, the Clerk of Court shall forward

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this report to the district court for disposition. The defendant’s deadline for dispositive

motions, which is currently June 9, 2025, is stayed pending resolution of this report and

recommendation.

IT IS SO RECOMMENDED.

s/Kevin F. McDonald

United States Magistrate Judge

May 6, 2025

Greenville, South Carolina

The attention of the parties is directed to the important notice on the following page.

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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.’” Diamond v. Colonial Life

& Acc. Ins. Co., 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);

see 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

250 East North Street, Suite 2300

Greenville, South Carolina 29601

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); 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).

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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