Wright v. Kendtz et al

Filing 72

ORDER adopting the 65 Report and Recommendation and dismissing this action without prejudice. Further, this action is subject to summary dismissal for failure to effect service pursuant to Rule 4(m). Signed by Honorable Timothy M. Cain on 3/31/2021. (mmcd)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ROCK HILL DIVISION Edrian Donyae Wright a/k/a Yae, Yae ) Yo, ) ) Plaintiff, ) ) vs. ) ) Dr. Kendtz and Barber Beede, ) ) Defendants. ) _________________________________) Civil Action No. 0:20-cv-2299-TMC ORDER Plaintiff Edrian Donyae Wright, a state prisoner proceeding pro se and in forma pauperis, filed this action pursuant to 42 U.S.C. § 1983. (ECF Nos. 1; 2; 11; 17). In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), this matter was referred to a magistrate judge for all pretrial proceedings. On September 23, 2020, the magistrate judge entered an order authorizing the issuance and service of process against Defendants and directing the United States Marshals Service to effect service. (ECF No. 17). Both summonses were returned unexecuted, indicating that the South Carolina Department of Corrections (“SCDC”) could not find Defendants. (ECF No. 21). Consequently, the magistrate judge issued an order on November 6, 2020, directing Plaintiff to complete and return Form USM-285 to better identify both Defendants within fourteen days. (ECF No. 22). Twice Plaintiff filed new Forms USM-285 attempting to identify and locate Defendants, (ECF Nos. 30; 46), and the court reauthorized service and directed the Marshals Service to effect service pursuant to the forms Plaintiff filed, (ECF Nos. 1 32; 52). 1 Both times the summonses were returned unexecuted, again indicating that SCDC could not find Defendants. (ECF Nos. 39; 58; 59). Now before the court is the magistrate judge’s Report and Recommendation (“Report”), entered on March 9, 2021, recommending that the court dismiss this case for failure to effect service pursuant to Federal Rule of Civil Procedure 4(m). (ECF No. 65). The Report was mailed to Plaintiff at the address he provided to the court on March 10, 2021, (ECF No. 68), and has not been returned. Therefore, Plaintiff is presumed to have received the Report. Plaintiff was advised of his right to file objections to the Report. (ECF No. 65 at 4). However, Plaintiff has filed no objections and the time to do so has now run. This matter is now ripe for review. The magistrate judge’s recommendation has no presumptive weight, and the responsibility for making a final determination remains with the United States District Court. Wimmer v. Cook, 774 F.2d 68, 72 (4th Cir. 1985) (quoting Mathews v. Weber, 423 U.S. 261, 270–71 (1976)). Nevertheless, “[t]he district court is only required to review de novo those portions of the report to which specific objections have been made, and need not conduct de novo review ‘when a party makes general and conclusory objections that do not direct the court to a specific error in the magistrate judge’s proposed findings and recommendations.’” Farmer v. McBride, 177 Fed. App’x 327, 330–31 (4th Cir. April 26, 2006) (quoting Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982)). The court may accept, reject, or modify, in whole or in part, the recommendation made by the magistrate judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1). However, in the absence of specific objections to the Report and Recommendation, this Court is not required to give any explanation for adopting the recommendation. Greenspan v. Brothers Plaintiff appealed the court’s December 1, 2020 order reauthorizing service to the Fourth Circuit Court of Appeals. (ECF No. 47). The Fourth Circuit dismissed Plaintiff’s appeal and the mandate and order were filed on March 15, 2021. (ECF No. 68). 1 2 Prop. Corp., 103 F. Supp. 3d 734, 737 (D.S.C. 2015) (citing Camby v. Davis, 718 F.2d 198, 199– 200 (4th Cir. 1983)). Thus, having thoroughly reviewed the Report and the record under the appropriate standards, the court, finding no clear error, ADOPTS the Report in its entirety (ECF No. 65), and incorporates it herein. Accordingly, the court finds that this action is subject to summary dismissal for failure to effect service pursuant to Rule 4(m). Therefore, this case is DISMISSED without prejudice. The clerk of court shall provide a filed copy of this order to Plaintiff at his last known address. IT IS SO ORDERED. s/Timothy M. Cain United States District Judge Anderson, South Carolina March 31, 2021 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. 3

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