Page v. Dunlap

Filing 36

OPINION AND ORDER adopting the 32 Report and Recommendation, dismissing the action with prejudice for failure to prosecute, terminating the Respondent's 24 Motion for Summary Judgment as moot, and denying a certificate of appealability. Signed by Honorable Cameron McGowan Currie on 1/24/2017. (bgoo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Jaleel Vaughn Page,

C/A. No. 0:16-2131-CMC

Petitioner,
v.
Opinion and Order
Warden Dunlap,
Respondent.

This matter is before the court on Petitioner’s pro se application for writ of habeas corpus,
filed in this court pursuant to 28 U.S.C. § 2254. ECF No. 1. Respondent filed a motion for
summary judgment, as well as a return and memorandum of law on October 28, 2016. ECF Nos.
23, 24. A Roseboro Order was mailed to Petitioner on October 31, 2016, advising Petitioner of
the importance of a dispositive motion and the need for Petitioner to file an adequate response.
ECF No. 25. Petitioner did not respond. The Magistrate Judge entered a second order on
December 8, 2016, directing Petitioner to advise the court as to whether he intended to continue
with the case and to file a return to the motion for summary judgment. ECF No. 29. Petitioner
failed to respond in any way to that Order as well.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(d), DSC, this
matter was referred to United States Magistrate Judge Paige J. Gossett for pre-trial proceedings
and a Report and Recommendation (“Report”). On January 4, 2017, the Magistrate Judge issued
a Report recommending that the action be dismissed with prejudice for lack of prosecution and
that any pending motions be terminated. ECF No. 32. The Magistrate Judge advised Petitioner of
the procedures and requirements for filing objections to the Report and the serious consequences

if he failed to do so. Petitioner has filed no objections and the time for doing so has expired, and
Petitioner’s copy of the Report has not been returned to the court.
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. See Matthews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of any portion of the Report of the Magistrate Judge to which a specific objection
is made. The court may accept, reject, or modify, in whole or in part, the recommendation made
by the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28
U.S.C. § 636(b). 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) (stating that
“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.”) (citation omitted).
After reviewing the entire record, the applicable law, and the Report and Recommendation
of the Magistrate Judge, the court finds no clear error.

Accordingly, the Report and

Recommendation of the Magistrate Judge is adopted and incorporated by reference. The court
finds that Petitioner has failed to adequately respond to Orders of the Court and thereby shown a
lack of prosecution. Further, the court finds that the factors regarding dismissal pursuant to Rule
41(b) are met in this case: Petitioner is personally responsible for the failure to respond to
numerous court orders; Respondent has been prejudiced in the time spent preparing a voluminous
response to Petitioner’s filing; Petitioner has been given multiple extensions of time and
opportunities to respond, showing a history of proceeding in a “dilatory fashion;” and no sanction
less drastic than dismissal exists. See Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978). This
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matter is dismissed with prejudice for failure to prosecute. Id. (“The district court had authority
under Rule 41(b) to dismiss the case with prejudice, on its own motion, for failure to prosecute.”).
Respondent’s motion for summary judgment is moot.
CERTIFICATE OF APPEALABILITY
The governing law provides that:
(c)(2) A certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.
(c)(3) The certificate of appealability . . . shall indicate which specific issue or issues
satisfy the showing required by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable jurists
would find this court’s assessment of his constitutional claims is debatable or wrong and that any
dispositive procedural ruling by the district court is likewise debatable. See Miller-El v. Cockrell,
537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d
676, 683 (4th Cir. 2001). In this case, the legal standard for the issuance of a certificate of
appealability has not been met. Therefore, a certificate of appealability is denied.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
January 24, 2017

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