Cabbagestalk v. McMillian et al

Filing 83

ORDER adopting 80 Report and Recommendation. This action is dismissed with prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Signed by Honorable Mary G Lewis on 11/6/2013.(abuc) Modified on 11/7/2013 (abuc). (Main Document 83 replaced on 11/7/2013) (abuc).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
) Civil Action No.: 0:13-212-MGL
)
Plaintiff, )
)
)
v.
ORDER
)
Lt. McMillian, Classification; Major Darryl
)
McGainey, Major of Security; Lt. Glover,
)
)
Disciplinary Hearing Officer, in their
)
individual and official capacity as county
)
employees,
)
Defendants. )
_____________________________________ )
Frederick L. Cabbage stalk,

Plaintiff Frederick L. Cabbage stalk (“Plaintiff”), proceeding pro se, filed this action
pursuant to 42 U.S.C. § 1983 against Defendants alleging violations of his constitutional rights.
(ECF No. 1). At the time of the underlying events, Plaintiff was a pretrial detainee at the Sumter
Lee Regional Detention Center in Sumter, South Carolina. In accordance with 28 U.S.C. § 636(b)
and Local Rule 73.02, D.S.C., this matter was referred to United States Magistrate Judge Paige J.
Gossett for pretrial handling and a Report and Recommendation.
On August 15, 2013, Defendants filed a motion for summary judgment. (ECF No. 63). In
accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) (ECF No. 65), the Magistrate
Judge issued an order that advised Plaintiff of the summary judgment procedures and the possible
consequences for failing to respond adequately.1 On August 26, 2013, the Magistrate Judge’s order
(ECF No. 65) was returned as undeliverable mail. Thereafter, on September 25, 2013, the
Magistrate Judge issued a second order directing Plaintiff to advise the court within fourteen (14)

1

Plaintiff was advised by order filed February 15, 2013 (ECF No. 11), of his
responsibility to notify the court in writing if his address changed. Plaintiff was also informed
that his case could be dismissed for failing to comply with the court's order. (ECF No. 11 at 2).

days of entry of the order whether or not he wished to continue with his case and to file a response
to Defendants’ motion for summary judgment. (ECF No. 76). Plaintiff was specifically warned that
if he failed to respond, Defendants’ motion could be granted and this matter could be dismissed for
failure to prosecute. On October 3, 2013, the court’s September 25, 2013 order was returned as
undeliverable mail. Thereafter, on October 16, 2013, Magistrate Judge Gossett entered a Report
and Recommendation recommending that this action be dismissed with prejudice pursuant to
Federal Rule of Civil Procedure 41(b) due to Plaintiff’s failure to comply with this Court’s orders.
(ECF No. 80). The Magistrate Judge’s Report was mailed to Plaintiff advising him of his right to
file objections to the Report and Recommendation and the time frame in which he must do so.
Objections were due on November 4, 2013. (ECF No. 80 at 3). The time for filing objections has
passed and no objections have been filed.2
The Magistrate Judge makes only a recommendation to the court. The recommendation has
no presumptive weight. The responsibility for making a final determination remains with the court.
Mathews v. Weber, 423 U.S. 261, 270, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The court may accept,
reject, or modify, in whole or in part, the Report or may recommit the matter to the Magistrate Judge
with instructions. 28 U.S.C. § 636(b)(1). 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).
Upon review, the court notes that Plaintiff has failed to comply with this Court’s order of
February 15, 2013, by not keeping the Clerk advised of his current address. As such, it appears that
Plaintiff no longer wishes to pursue this action. Accordingly, the court accepts the Magistrate

2

The Magistrate Judge’s Report and Recommendation was returned to the court as
undeliverable mail on October 25, 2013.

Judge’s Report and Recommendation. After careful review of the record, the applicable law, and
the Report and Recommendation, the within action is hereby DISMISSED with prejudice pursuant
to Rule 41(b) of the Federal Rules of Civil Procedure.
IT IS SO ORDERED.
/s/Mary G. Lewis
United States District Judge
Spartanburg, South Carolina
November 6, 2013