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:
2
(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
3
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.
4
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).
5