Gabe v. Walker et al

Filing 39

ORDER adopting Report and Recommendations 34 . For the reasons articulated by the magistrate judge, it is hereby ordered that this action is dismissed with prejudice for failure to prosecute pursuant to FRCP 41(b). Signed by Honorable Patrick Michael Duffy on 9/29/15.(cper, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

Michael A. Gabe,
Plaintiff,
vs.
Sheriff Andy Strickland; Captain Jodie Taylor;
and Colleton County Sheriff’s Office,
Defendants.

) C.A. No. 1:15-1239-PMD
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ORDER
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This matter is before the court upon the magistrate judge's recommendation that this action
be dismissed. Because plaintiff is proceeding pro se, this matter was referred to the magistrate
judge.1
This Court is charged with conducting a de novo review of any portion of the magistrate
judge's report to which a specific objection is registered, and may accept, reject, or modify, in whole
or in part, the recommendations contained in that report. 28 U.S.C. § 636(b)(1). However, absent
prompt objection by a dissatisfied party, it appears that Congress did not intend for the district court
to review the factual and legal conclusions of the magistrate judge. Thomas v Arn, 474 U.S. 140
(1985). Additionally, any party who fails to file timely, written objections to the magistrate judge's
report pursuant to 28 U.S.C. § 636(b)(1) waives the right to raise those objections at the appellate
court level. United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).2 No objections have been filed

1

Pursuant to the provisions of Title 28 United States Code, § 636(b)(1)(B), and Local
Rule 73.02(B)(2)(d), D.S.C., the magistrate judge is authorized to review all pretrial matters and
submit findings and recommendations to this Court.
2

In Wright v. Collins, 766 F.2d 841 (4th Cir. 1985), the court held "that a pro se litigant must
receive fair notification of the consequences of failure to object to a magistrate judge's report

to the magistrate judge's report. Moreover, the report and recommendation sent to plaintiff was
returned with a notation from the U.S. Postal Service stating “RETURN TO SENDER - NOT
DELIVERABLE AS ADDRESSED - UNABLE TO FORWARD,” and no change of address had
been given as directed by the court.3
A review of the record indicates that the magistrate judge's report accurately summarizes this
case and the applicable law, therefore, the magistrate judge’s report and recommendation is hereby
adopted as the order of this Court. For the reasons articulated by the magistrate judge, it is hereby
ordered that this action is dismissed with prejudice for failure to prosecute pursuant to FRCP 41(b).
AND IT IS SO ORDERED.

September 29, 2015
Charleston, South Carolina

before such a procedural default will result in waiver of the right to appeal. The notice must be
'sufficiently understandable to one in appellant's circumstances fairly to appraise him of what is
required.'" Id. at 846. Plaintiff was advised in a clear manner that his objections had to be filed
within ten (10) days, and he received notice of the consequences at the appellate level of his
failure to object to the magistrate judge's report.
3

The court issued an order on March 23, 2015, instructing plaintiff to keep the Clerk of
Court advised in writing of any change of address.
2