Cutner v Warden of Perry Correctional Institution

Filing 36

ORDER RULING ON REPORT AND RECOMMENDATIONS, that this action is DISMISSED with prejudice for lack of prosecutionpursuant to Rule 41(b) of the Federal Rules of Civil Procedure. 22 33 . Signed by Honorable G Ross Anderson, Jr on 3/11/09. (ahen, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ROCK HILL DIVISION Lamont Cutner, #185864, ) ) Petitioner, ) v. ) ) ) Warden of Perry Correctional ) Institution, ) ) Respondent. ) ______________________________) C/A No. 0:08-2884-GRA-PJG ORDER This matter comes before the Court for a review of the magistrate's Report and Recommendation pursuant to 28 U.S.C. 636(b)(1)(B), and Local Rule 73.02(B)(2)(c), D.S.C., filed on February 17, 2009. On December 15, 2008, the respondent filed a motion for summary judgment. The magistrate issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising the petitioner of the dismissal and summary judgment procedures and the possible consequences if he failed to adequately respond. Additionally, the magistrate issued a second order on January 26, 2009, giving the petitioner an additional fifteen (15) days in which to file his response to the respondent's motion for summary judgment and advising him of the consequences if he failed to do so. The petitioner failed to file a response. Petitioner brings this claim pro se. This Court is required to construe pro se pleadings liberally. Such pleadings are held to a less stringent standard than those drafted by attorneys. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). This Court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See Boag v. MacDougall, 454 U.S. 364, 365 (1982). The magistrate makes only a recommendation to this Court. The recommendation has no presumptive weight, and responsibility for making a final determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made, and this Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. 636(b)(1). This Court may also "receive further evidence or recommit the matter to the magistrate with instructions." Id. In order for objections to be considered by a United States District Judge, the objections must specifically identify the portions of the Report and Recommendation to which the party objects and the basis for the objections. FED. R. CIV. P. 72(b); see United States v. Schronce, 727 F.2d 91,94 n.4 (4th Cir. 1984); Wright v. Collins, 766 F.2d 841, 845-47 nn.1-3 (4th Cir. 1985). "Courts have . . . held de novo review to be unnecessary in . . . situations when a party makes general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendation." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Furthermore, in the absence of specific objections to the Report and Recommendation, this Court is not required to give any explanation for adopting the recommendation. Page 2 of 3 Camby v. Davis, 718 F.2d 198 (4th Cir. 1983). The petitioner has filed no objections. After reviewing the record, and the Report and Recommendation this Court finds that the magistrate applied sound legal principles to the facts of this case. Therefore, this Court adopts the magistrate's Report and Recommendation in its entirety. Accordingly, this action is DISMISSED with prejudice for lack of prosecution pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. IT IS SO ORDERED. Anderson, South Carolina March 11, 2009 NOTICE OF RIGHT TO APPEAL Petitioner is hereby notified that he has the right to appeal this Order within thirty (30) days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure. Failure to meet this deadline, as modified within Rule 4, will waive the right to appeal. Page 3 of 3

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