Ventura v. United States of America et al

Filing 63

ORDER Adopting the 50 Report and Recommendation and Dismissing Plaintiff's 1 Complaint. Signed by Honorable Mary Geiger Lewis on 2/28/2019. (lbak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
GERMAN DE JESUS VENTURA,
Plaintiff,

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vs.
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UNITED STATES OF AMERICA. R.J.
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STALLINGS, MRS. ROSARIO, DR. FONTE, §
MR. FINNERTY, and WARDEN BONITA
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S. MOSELY;
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Defendants.
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Civil Action No. 1:17-1199-MGL

ORDER ADOPTING THE REPORT AND RECOMMENDATION
AND DISMISSING PLAINTIFF’S COMPLAINT
Plaintiff German De Jesus Ventura (Ventura), proceeding pro se, filed this action seeking
compensatory damages pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau
of Narcotics, 403 U.S. 388 (1971) and the Federal Tort Claims Act, 18 U.S.C. § 1346(b). The
matter is before the Court for review of the Report and Recommendation (Report) of the United
States Magistrate Judge suggesting this case be dismissed with prejudice due to Ventura’s failure
to respond to the Court’s prior orders. The Report was made in accordance with 28 U.S.C. § 636
and Local Civil Rule 73.02 for the District of South Carolina.
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 September 18, 2018. ECF No. 50. Ventura filed
a letter on October 1, 2018, stating “German De Jesus Ventura (“Plaintiff”) would like to object
to the Report and Recommendation (Doc. 50-1). I need more time. I am in jail, not getting my
mail, and trying to get a lawyer.” ECF No. 52. On October 17, 2018, this Court granted Ventura’s
motion for extension of time and gave Ventura until November 16, 2018 to respond to the Report.
ECF No. 57. Ventura has failed to file any objections, letters, or otherwise respond to the Court
since October 24, 2017. ECF No. 59. “[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.3d 310, 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). As the Magistrate Judge noted in the Report, it is Ventura’s duty to inform
the Court if there is a change in address. Ventura failed to provide such a notification. Therefore,
it appears to the Court Ventura wishes to abandon this action.
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 Ventura’s complaint is DISMISSED with prejudice as a result of Ventura’s
abandonment of this action.
IT IS SO ORDERED.

Signed this 28th day of February 2019 in Columbia, South Carolina.
s/ Mary Geiger Lewis
MARY GEIGER LEWIS
UNITED STATES DISTRICT JUDGE
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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.