Davila v. Thomas
ORDER adopting 34 Report and Recommendation; dismissing the action with prejudice; and rendering any motions necessary as moot. A certificate of appealability is denied. Signed by Honorable Mary Geiger Lewis on 9/18/2017. (mwal)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
JOSE INES DAVILA,
WARDEN LR THOMAS,
CIVIL ACTION NO. 1:15-4956-MGL
ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE
MAGISTRATE JUDGE AND DISMISSING THE PETITION WITH PREJUDICE FOR
FAILURE TO PROSECUTE
Petitioner filed this as a 28 U.S.C. § 2241 action. He is proceeding pro se. The matter is
before the Court for review of the Report and Recommendation (Report) of the United States
Magistrate Judge suggesting this action be dismissed with prejudice for failure to prosecute. The
Report was made in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of
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 the Court.
Mathews v. Weber, 423 U.S. 261, 270 (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 with instructions. 28 U.S.C. § 636(b)(1).
The Magistrate Judge filed the Report on August 22, 2017, but Petitioner failed to file any
objections to the Report. “[I]n the absence of a timely filed objection, a district court need not
conduct a 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.’” Diamond v. Colonial Life & Acc. Ins. Co.,
416 F.3d310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note). Moreover,
a failure to object waives appellate review. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985).
After a thorough review of the Report and the record in this case pursuant to the standard set
forth above, the Court adopts the Report and incorporates it herein. Therefore, it is the judgment
of the Court this action is DISMISSED WITH PREJUDICE for failure to prosecute. Any pending
motions are, thus, necessarily RENDERED AS MOOT.
To the extent that Petitioner requests a certificate of appealability from this Court, that
certificate is DENIED.
IT IS SO ORDERED.
Signed this 18th day of September, 2017, in Columbia, South Carolina.
s/ Mary Geiger Lewis
MARY GEIGER LEWIS
UNITED STATES DISTRICT JUDGE
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this Order within sixty days from the
date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.
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