Lloyd v. Major et al

Filing 32

ORDER ADOPTING 28 REPORT AND RECOMMENDATION dismissing this action with prejudice pursuant to Rule 41(b) of the FRCP for failure to prosecute. Defendants' second motion for extension of time to file dispositive motions 30 is found as moot. Signed by Honorable R Bryan Harwell on 5/26/2015. (gmil)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
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Plaintiff,
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v.
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Simon Major, Director; Daryl
McGhaney, Asst. Director (Major); )
Captain Theresa Ray-Lee; Captain )
Gillard; Lieutenant C. Kelley;
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Sergeant Cusandra F. Wilson;
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Sergeant James; and Sergeant
Shirah,
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Defendants.
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Mario Antwan Lloyd,

Civil Action No.: 1:14-cv-4666-RBH

ORDER

Plaintiff Mario Antwan Lloyd, proceeding pro se,1 filed this action pursuant to 42 U.S.C. §
1983 against the above captioned Defendants on December 10, 2014. See Compl., ECF No. 1. On
January 12, 2015, Defendants filed an answer to the complaint. See Def.’s Ans., ECF No. 12. The
matter is now before the Court for review of the Report and Recommendation of United States
Magistrate Judge Shiva V. Hodges, made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local
Rule 73.02 for the District of South Carolina. See R & R, ECF No. 28. In the Report and
Recommendation, the Magistrate Judge recommends the Court dismiss this action with prejudice
pursuant to Rule 41(b) of the Federal Rules of Civil Procedure (“FRCP”) for failure to prosecute.
See id. at 2.
1

At the time Plaintiff filed this action, he stated he was confined at the Sumter-Lee Regional
Detention Center, 1250 Winkles Road, Sumter, SC 29153. See ECF No. 1 at 1–2. Several filings
that the Court subsequently mailed to Plaintiff, however, were returned as undeliverable. See ECF
Nos. 27, 31. Plaintiff has not made any additional filings subsequent to the Complaint, and he has
not notified the Court of a different mailing address. Accordingly, it is unclear whether Plaintiff is
still incarcerated and, if so, what his proper mailing address is.

The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight. The responsibility to make a final determination remains with this
Court. See Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The Court is charged with making a
de novo determination of those portions of the Report and Recommendation 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 with instructions. See 28 U.S.C.
§ 636(b)(1).
No party has filed objections to the Report and Recommendation.2 In the absence of
objections to the Report and Recommendation of the Magistrate Judge, this Court is not required to
give any explanation for adopting the recommendations. See Camby v. Davis, 718 F.2d 198, 199
(4th Cir. 1983). The Court reviews only for clear error in the absence of an objection. See
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310 (4th Cir. 2005) (stating that “in the
absence of a timely filed objection, a district court need not conduct 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’”) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
After a thorough review of the record in this case, the Court finds no clear error.
Accordingly, the Report and Recommendation of the Magistrate Judge is adopted and incorporated
by reference. Therefore, it is ORDERED that this action is DISMISSED with prejudice pursuant

2

In the R & R, the Magistrate Judge noted that Defendants filed a motion for an extension of time
to file dispositive motions on April 10, 2015, see ECF No. 21, which was granted via Order on the
same day, see ECF No. 22. The Clerk of Court mailed Plaintiff a copy of the Order on April 13,
2015, see ECF No. 25, but it was returned as undeliverable on April 27, 2015, see ECF No. 27. The
Magistrate Judge noted that her December 15, 2014 Order directed Plaintiff to notify the Court in
writing of any change in address, and that Plaintiff failed to do so. See ECF No. 28 at 2–3.
Accordingly, she recommended the Court dismiss this action pursuant to Rule 41(b). A copy of the
R & R was mailed to Plaintiff’s mailing address of record, see ECF No. 29, but was also returned as
undeliverable, see ECF No. 31.
2

to Rule 41(b) of the FRCP for failure to prosecute. Defendants’ second motion for extension of
time to file dispositive motions, ECF No. 30, is FOUND AS MOOT.
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Florence, South Carolina
May 26, 2015

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