Clyburn v. Drago
ORDER ADOPTING 28 REPORT AND RECOMMENDATION. This action is dismissed with prejudice for lack of prosecution. The Clerk shall docket the defendant's motion for summary judgment 23 as moot. Signed by Honorable Joseph F Anderson, Jr on 4/30/2014. (abuc)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Dr. Paul C. Drago, M.D., in his personal
) C/A No. 1:13-2171-JFA-SVH
The pro se plaintiff, Lenson Clyburn, is an inmate with the South Carolina
Department of Corrections. He brings this action pursuant to 42 U.S.C. § 1983 contending
that the defendant was deliberately indifferent to his serious medical needs in violation of the
Eighth Amendment to the United States Constitution.
The Magistrate Judge assigned to this action1 has prepared a Report and
Recommendation wherein she suggests that this court should dismiss the action for lack of
prosecution pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The defendant
filed a motion for summary judgment, however, the plaintiff did not respond to the motion.2
The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local
Civil Rule 73.02. 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.
Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those
portions of the Report to which specific objection is made and the court may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate
Judge with instructions. 28 U.S.C. § 636(b)(1).
An order was issued pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) notifying
plaintiff of the summary dismissal procedure and possible consequences if he failed to adequately respond
to the motion for summary judgment.
The Report sets forth in detail the relevant facts and standards of law on this matter, and the
court incorporates such without a recitation.
The plaintiff was advised of his right to file objections to the Report and
Recommendation, which was entered on the docket on March 24, 2014. However, the
plaintiff did not file objections and the time within which to do so has now expired. In the
absence of specific objections to the Report of the Magistrate Judge, this court is not required
to give any explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d
198, 199 (4th Cir. 1983).
The Magistrate Judge has allowed the plaintiff time to respond to the court’s various
orders and the plaintiff has failed to do so. This court agrees with the Magistrate Judge that
the plaintiff meets all of the criteria for dismissal under Rule 41(b). See Ballard v. Carlson,
882 F.2d 93 (4th Cir. 1989), Davis v. Williams, 588 F.2d 69 (4th Cir. 1978).
Accordingly, this action is dismissed with prejudice for lack of prosecution. The
Clerk shall docket the defendant’s motion for summary judgment (ECF No. 23) as moot.
IT IS SO ORDERED.
Joseph F. Anderson, Jr.
United States District Judge
April 30, 2014
Columbia, South Carolina
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