Childs v. McCabe

Filing 41

REPORT AND RECOMMENDATION recommending this action be dismissed with prejudice for failure to prosecute. Objections to R&R due by 11/28/2011. Signed by Magistrate Judge Shiva V Hodges on 11/7/2011 (Attachments: # 1 Notice of Right to File Objections).(mcot, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA Jesse Lee Childs, ) ) ) ) ) ) ) ) ) ) Petitioner, vs. Wayne C. McCabe, Warden, Respondent. C/A No.: 1:11-873-RMG-SVH REPORT AND RECOMMENDATION Petitioner, proceeding pro se, brought this action pursuant to 28 U.S.C. § 2254. Respondent filed a motion for summary judgment on August 10, 2011. [Entry #22]. As Petitioner is proceeding pro se, the court entered an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), on August 10, 2011, advising him of the importance of a motion for summary judgment and of the need for him to file an adequate response. [Entry #24]. Petitioner was specifically advised that if he failed to respond adequately, Respondent’s motion may be granted, thereby ending this case. Notwithstanding the specific warning and instructions set forth in the court’s Roseboro order, Petitioner has failed to respond to the motion. On September 16, 2011, the court ordered Petitioner to advise whether he wished to continue with the case by September 30, 2011. [Entry #27]. On October 5, 2011, Petitioner filed a motion extending requesting a further extension of time to respond to the motion. [Entry #34]. The court granted Plaintiff’s motion for an extension and ordered Petitioner to respond by November 4, 2011. [Entry #35]. Notwithstanding the court’s orders, Petitioner has filed no response to Respondent’s motion for summary judgment. As such, it appears to the court that he does not oppose the motion and wishes to abandon this action. Based on the foregoing, the undersigned recommends this action be dismissed with prejudice for failure to prosecute. See Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978); Fed. R. Civ. P. 41(b). IT IS SO RECOMMENDED. November 7, 2011 Florence, South Carolina Shiva V. Hodges United States Magistrate Judge 2

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