Duren v. McFadden et al

Filing 17

ORDER concurring 12 Report and Recommendation and dismissing Plaintiff's complaint without prejudice pursuant to Rule 41(b) for failure to prosecute. Signed by Honorable Margaret B Seymour on 1/18/2017. (mwal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
David A. Duren, #181965,

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Plaintiff,
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vs.
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ORDER
Joseph McFadden, Warden, Lieber
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C.I.; and Daniel Gourley, Asst.
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Attorney General,
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Defendants.
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____________________________________)
Plaintiff David A. Duren is an inmate in custody of the South Carolina Department of
Corrections. He currently is housed at Lieber Correctional Institution in Ridgeville, South Carolina.
Plaintiff, proceeding pro se and in forma pauperis, filed a complaint on September 1, 2016, alleging
that Defendants violated his constitutional rights. See 42.U.S.C. § 1983. In accordance with 28
U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred to United States Magistrate
Judge Shiva V. Hodges for pretrial handling.
On September 6, 2016, the Magistrate Judge issued an order directing Plaintiff to bring his
complaint into proper form by (1) fully completing the “Statement of Claim” section on his
complaint form; (2) completing a summons form; and (3) completing a Form USM-285 for each
Defendant. Plaintiff was cautioned that his failure to bring the case into proper form could result in
the case being dismissed for failure to prosecute. See Fed. R. Civ. P. 41(b). Plaintiff filed no
response to the Magistrate Judge’s order. On October 3, 2016, the Magistrate Judge issued a second
proper form order. After Plaintiff did not respond, the Magistrate Judge issued a Report and
Recommendation on October 31, 2016, in which she recommended that the case be dismissed

without prejudice for failure to prosecute. By order filed November 3, 2016, Plaintiff was granted
an extension of time until December 19, 2016, to file objections to the Report and Recommendation.
However, Plaintiff filed no objection to the Report and Recommendation.
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight. The responsibility for making a final determination remains with this court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). This court may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1).
This court may also receive further evidence or recommit the matter to the Magistrate Judge with
instructions. Id. In 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.3d 310,
315 (4th Cir. 2005).
The court has thoroughly reviewed the record. The court concurs in the Report and
Recommendation and incorporates it herein by reference. Plaintiff’s complaint is dismissed, without
prejudice, pursuant to Rule 41(b) for failure to prosecute.
IT IS SO ORDERED.

/s/ Margaret B. Seymour
Senior United States District Judge
Columbia, South Carolina
January 18, 2017

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NOTICE OF RIGHT TO APPEAL
Plaintiff is hereby notified of the right to appeal this order
pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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