El-Bey v. Clover Police Department et al

Filing 42

ORDER ACCEPTING 40 REPORT AND RECOMMENDATION. This case is dismissed with prejudice as to all Defendants for failure to prosecute. The matters addressed in the Magistrate Judge's April 24, 2014 Report and Recommendatio n are now moot. 16 . The motion for summary judgment filed by the Clover Police Department, C.D. Dover, C.J. Neeland, and M.L. Wilson 32 and the motion to dismiss and for summary judgment filed by J. Corsey Bentley and C.S. Salvage, Inc. 35 are hereby denied as moot. Signed by Chief Judge Terry L Wooten on 10/29/2014. (abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Dianne Michele Carter El-Bey, aka
D’ori Me’ira El-Bey,

)
)
)
Plaintiff,
)
)
vs.
)
)
ML Wilson; CJ Neeland; CD Dover;
)
CS Salvage Inc d/b/a A+ Garage & Towing; )
J Corsey Bentley; Rachel Anne Fiesta
)
Fleming; Herman Melvin Howell;
)
Clover Police Department; York County
)
Sheriffs Office; and Bruce M. Bryant,
)
)
Defendants.
)
___________________________________ )

Case No. 0:14-cv-00513-TLW

ORDER
Plaintiff Dianne Michele Carter El-Bey, proceeding pro se and in forma pauperis, brought
this action alleging constitutional violations and state law causes of action in relation to her arrest
and detention in February 2011. (Doc. #13). Plaintiff names as defendants the Clover Police
Department; M.L. Wilson, C.J. Neeland, and C.D. Dover, all officers with the Clover Police
Department; C.S. Salvage, Inc. d/b/a A+ Garage & Towing; J. Corsey Bentley, the owner of A+
Garage & Towing; Rachel Anne Fiesta Fleming and Herman Melvin Howell, both South
Carolina state court judges; the York County Sheriff’s Office; and Bruce M. Bryant, the York
County Sheriff.
This matter is now before the Court for review of two Reports and Recommendations
(the “Reports”) filed by United States Magistrate Judge Shiva V. Hodges, to whom this case was
assigned pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(e), (D.S.C.). In the
first Report, issued on April 24, 2014, the Magistrate Judge recommends that this Court dismiss

the Amended Complaint without prejudice and without issuance and service of process as to
Defendants Fleming and Howell. (Doc. #16). Plaintiff filed timely objections to the Report on
May 12, 2014. (Doc. #21).

On July 29, 2014, Defendants Clover Police Department, Dover,

Neeland, and Wilson filed a motion for summary judgment. (Doc. #32). Plaintiff’s response
was due by September 5, 2014, but she failed to respond. On September 8, 2014, Defendants
Bentley and C.S. Salvage, Inc. filed a motion to dismiss and for summary judgment. (Doc. #35).
On September 9, 2014, the Magistrate Judge issued an Order directing Plaintiff to advise the
Court whether she wishes to continue with the case and to file a response to Defendant Clover
Police Department’s motion for summary judgment by September 23, 2014. (Doc. #38). The
Magistrate Judge further noted that Plaintiff’s response to Defendant Bentley’s motion to dismiss
and for summary judgment was due by October 14, 2014, and that if Plaintiff failed to respond to
the motions, the Court would assume that she wishes to abandon her case against all defendants.
Id. Plaintiff did not respond to either motion.
In the Magistrate Judge’s second Report, filed on October 8, 2014, she recommends
dismissing this action with prejudice for failure to prosecute based on Plaintiff’s failure to
respond to the two motions and failure to comply with the Court’s September 9 Order. (Doc.
#40). Plaintiff’s objections to the second Report were due by October 27, 2014. Plaintiff failed
to file objections, and this matter is now ripe for review.
The Court finds that the filing of the second Report has rendered the first Report moot.
The Court is charged with conducting a de novo review of any portion of the second Report to
which a specific objection is registered, and may accept, reject, or modify, in whole or in part,
the recommendations contained therein. 28 U.S.C. § 636. However, in the absence of objections
to the Report, the Court is not required to give any explanation for adopting the Magistrate

Judge’s recommendation. See Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983). In such a
case, “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 & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed.
R. Civ. P. 72 advisory committee’s note).
In light of this standard, the Court has carefully reviewed the second Report, and it
concludes that the Magistrate Judge accurately summarizes the case and the applicable law. It is
therefore ORDERED that the Magistrate Judge’s October 8, 2014 Report and Recommendation
is ACCEPTED. (Doc. #40). For the reasons articulated by the Magistrate Judge, this case is
DISMISSED with prejudice as to all Defendants for failure to prosecute.
The matters addressed in the Magistrate Judge’s April 24, 2014 Report and
Recommendation are now MOOT. (Doc. #16). The motion for summary judgment filed by the
Clover Police Department, C.D. Dover, C.J. Neeland, and M.L. Wilson (Doc. #32) and the
motion to dismiss and for summary judgment filed by J. Corsey Bentley and C.S. Salvage, Inc.
(Doc. #35) are hereby DENIED as MOOT.
IT IS SO ORDERED.
s/ Terry L. Wooten
Terry L. Wooten
Chief United States District Judge
October 29, 2014
Columbia, South Carolina