Hecker v. Southern Health Partners et al

Filing 45

ORDER RULING ON REPORT AND RECOMMENDATIONS incorporating 41 Report and Recommendations and dismissing action with prejudice for lack of prosecution.. Signed by Honorable Joseph F Anderson, Jr on 9/2/2009. (jpet, )

U N I T E D STATES DISTRICT COURT D IS T R IC T OF SOUTH CAROLINA

D an iel Lee Hecker, P l a in tif f , vs. S o u th e rn Health Partners; Cathy Brown, Head N u rse ; Aiken County Maintenance; Kenneth G ree n , Supervisor, D e f e n d a n ts . ____________________________________

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C/A No. 0:09-544-JFA-PJG

ORDER

T h e pro se plaintiff, Daniel Lee Hecker, brings this action pursuant to 42 U.S.C. § 1 9 8 3 . The Magistrate Judge assigned to this action 1 has prepared a Report and R e c o m m e n d a tio n wherein he suggests that this court should dismiss the action for lack of p ro se c u tio n pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The Magistrate Ju d g e notes that the plaintiff meets all the criteria for dismissal under Chandler Leasing C o r p . v. Lopez, 669 F.2d 919 (4th Cir. 1982). The Report sets forth in detail the relevant f a cts and standards of law on this matter, and the court incorporates such without a recitation. The plaintiff was advised of his right to file objections to the Report and R e c o m m e n d a tio n , which was entered on the docket on August 14, 2009. However, the

The Magistrate Judge's review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02. The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions of the Report to which specific objection is made and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

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p l a in tif f did not file any objections 2 to the Report within the time limits prescribed. A d d itio n a lly, the court's order advising the plaintiff of the importance of responding to the d e f e n d a n ts ' motion for summary judgment was not responded to by the plaintiff. After a careful review of the record, the applicable law, and the Report and R e c o m m e n d a t io n , the court finds the Magistrate Judge's recommendation proper and in c o rp o ra te d herein by reference. Accordingly, this action is dismissed with prejudice for lack of prosecution pursuant to Rule 41(b). IT IS SO ORDERED.

S e p te m b e r 2, 2009 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

Under 28 U.S.C. § 636(b)(1), the district court is obligated to conduct a de novo review of every portion of the Magistrate Judge's Report to which objections have been filed. The court reviews the Report only for clear error in the absence of an objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to timely file specific written objections to the 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); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985).

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