United States District Court, W.D. Virginia, Roanoke Division
Rowland, Pro Se Plaintiff
H. Schnetzler, Frith Anderson Peake P.C., Roanoke,
Virginia, for Defendants.
OPINION AND ORDER
P. Jones United States District Judge
plaintiff, Daniel Rowland, proceeding pro se, brought this
civil rights action under 42 U.S.C. § 1983, alleging
that his civil rights were violated during a traffic stop on
April 6 or 7, 2018. After review of the record, I conclude
that the case must be dismissed.
filed his Complaint on January 9, 2019, when he was confined
at the Southwest Virginia Regional Jail Authority facility in
Duffield, Virginia. He sued Sheriff Parson and Deputy Jeff
Smith of the Lee County, Virginia, Sheriff's Office,
seeking monetary damages and dismissal of state criminal
charges. On January 31, 2019, the court docketed a letter
from Rowland, indicating that he was no longer incarcerated,
but giving his new address.
April 1, 2019, Smith filed an Answer, and Parson filed a
Motion to Dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure for failure to state a claim upon which
relief could be granted. The next day, the court issued a
notice informing Rowland that he had 21 days “to submit
any further counter-affidavits or other relevant evidence
contradicting, explaining or avoiding Defendant's
evidence.” Notice, ECF No. 27. The notice also stated:
If Plaintiff does not respond to Defendant's pleadings,
the Court will assume that Plaintiff has lost interest in the
case, and/or that Plaintiff agrees with what the Defendant
states in their responsive pleading(s). If Plaintiff wishes
to continue with the case, it is necessary that Plaintiff
respond in an appropriate fashion. Plaintiff may wish to
respond with counter-affidavits or other additional evidence
as outlined above. However, if Plaintiff does not file
some response within the twenty-one (21) day period, the
Court may dismiss the case for failure to prosecute.
Id. Rowland moved for an extension of time to
respond to Parson's motion, and the court granted him
until May 17, 2019, to do so. Rowland did not file a response
to Parson's motion.
31, 2019, Parson filed a Motion to Dismiss under Rule 41(b)
for failure to prosecute. Specifically, Parson argues that
Rowland's claims against him should be dismissed with
prejudice because Rowland failed to respond to the Rule
12(b)(6) motion within the time the court allotted. The court
issued a notice allowing Rowland 21 days to respond to the
Rule 41(b) motion, and he has failed to do so. Moreover, the
court has received no further filings or communication from
Rowland. None of the court's mailings to Rowland has been
returned as undeliverable at the mailing address he provided.
If the plaintiff fails to prosecute or to comply with these
rules or a court order, a defendant may move to dismiss the
action or any claim against it. Unless the dismissal order
states otherwise, a dismissal under this subdivision (b) and
any dismissal not under this rule--except one for lack of
jurisdiction, improper venue, or failure to join a party
under Rule 19--operates as an adjudication on the merits.
Fed. R. Civ. P. 41(b). In light of Rule 41(b), “[t]he
authority of a federal trial court to dismiss a
plaintiff's action with prejudice because of his failure
to prosecute cannot seriously be doubted.” Doyle v.
Murray, 938 F.2d 33, 34 (4th Cir. 1991) (citation
other hand, a dismissal with prejudice is a “harsh
sanction which should not be invoked lightly.”
Davis v. Williams, 588 F.2d 69, 70 (4th Cir.1978).
In light of the public policy in favor of deciding cases on
their merits, a district court should generally consider four
criteria when deciding whether to dismiss a case for failure
(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 presence or absence of a drawn
out history of deliberately proceeding in a dilatory fashion;
and (4) ...