Grimes v. Byars et al

Filing 67

ORDER RULING ON REPORT AND RECOMMENDATION adopting 63 Report and Recommendation, denying as moot 53 Motion for Summary Judgment, dismissing the action with prejudice for failure to prosecute. Signed by Honorable Timothy M Cain on 3/13/2013. (jpet, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
William Grimes,
Plaintiff,
v.
William R. Byars, Jr., SCDC Director; Mary
Simpson, Director ICS Program; Kevin
Moore, Assistant Director ICS Program;
Patricia Jones, ICS Counselor Individually,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

C/A No. 0:12-1244-TMC
ORDER

Plaintiff, a state prisoner proceeding pro se, filed this action pursuant to 42
U.S.C. § 1983.

This matter is before the court for review of the Report and

Recommendation of the United States Magistrate Judge Paige J. Gossett made in
accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of
South Carolina (“Report”).
The Magistrate Judge makes only a recommendation to this court.
recommendation has no presumptive weight.

The

The responsibility to make a final

determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The court is charged with making a de novo determination of those portions of
the Report and Recommendation to which specific objections are made, and the court
may accept, reject, or modify, in whole or in part, the Magistrate Judge’s
recommendation, or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).

On December 19, 2012, the Defendants moved for summary judgment. (Dkt.
No. 53.) The Plaintiff was advised of his right to respond to the Defendants’ motion on
December 20, 2012, (Dkt. No. 55), and again on January 31, 2013 (Dkt. No. 60).
Additionally, the Plaintiff was specifically advised that if he failed to respond, this action
would be dismissed for failure to prosecute. The Plaintiff still failed to respond.
Accordingly, the Magistrate Judge filed a Report, recommending that this action
be dismissed with prejudice for lack of prosecution. (Dkt. No. 63.) The Plaintiff was
advised of his right to file objections to the Report. (Dkt. No. 63 at 3). However, the
Plaintiff did not file objections.
In the absence of objections to the Magistrate Judge’s Report, this court is not
required to provide an explanation for adopting the recommendation. See Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, “in 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, 315 (4th
Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
After a thorough review of the Report and Recommendation and the record in
this case, the court adopts the Magistrate Judge’s Report and Recommendation (Dkt.
No. 63) and incorporates it herein. It appears the Plaintiff no longer wishes to prosecute
this action. It is therefore ORDERED that the action is DISMISSED with prejudice for
failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) and the factors
outlined in Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982). See
Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989).

It is further ORDERED that the

Defendants’ motion for summary judgment (Dkt. No. 53) is DENIED as moot.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
March 13, 2013

NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules
3 and 4 of the Federal Rules of Appellate Procedure.