Witherspoon v. Boland et al

Filing 17

ORDER agreeing with the 15 Report and Recommendation and dismissing this action without prejudice pursuant to Rule 41(b) for failing to comply with an Order of this Court. Signed by Honorable Donald C. Coggins, Jr. on 7/3/2018. (bgoo)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
LaVander Witherspoon,

)
)
Plaintiff,
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vs.
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Lt. Mickey Boland and Donna Miller,
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Defendants. )
_____________________________________ )

C/A No. 1:18-cv-00907-DCC

ORDER

This matter is before the Court on the Complaint alleging violations of his civil rights
pursuant to 42 U.S.C. § 1983. ECF No. 1. In accordance with 28 U.S.C. § 636(b) and
Local Civil Rule 73.02(B)(2), (D.S.C.), this matter was referred to United States Magistrate
Judge Shiva V. Hodges for pre-trial proceedings. On April 10, 2018, the Magistrate Judge
issued a Report and Recommendation (“Report”) recommending that the Complaint be
dismissed for failure to allege sufficient facts to state a plausible claim for deliberate
indifference to serious medical needs. ECF No. 8. Plaintiff filed objections to the Report
and also raised a possible conditions of confinement claim for the first time. ECF No. 10.
By Order dated May 17, 2018, this Court declined to adopt the Report and directed
Plaintiff to file an Amended Complaint including all of his claims within 14 days of that
Order. ECF No. 11. That Order was returned as undeliverable and, on June 13, 2018, the
Magistrate Judge issued a second Report and advised Plaintiff of the procedures and
requirements for filing objections to the Report and the serious consequences if he failed
to do so. ECF No. 15. Plaintiff failed to file objections or update his address and the time
to do so has lapsed.

The Magistrate Judge makes only a recommendation to this Court.

The

recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. See Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination of any portion of the Report of the
Magistrate Judge to which a specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation made by the Magistrate Judge or recommit
the matter to the Magistrate Judge with instructions. See U.S.C. § 636(b). The Court will
review the Report only for clear error in the absence of an objection. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the
absence of 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.” (citation omitted)).
The Magistrate Judge recommends dismissal of this action pursuant to Rule 41(b)
of the Federal Rules of Civil Procedure. ECF No. 15. Plaintiff has failed to keep the Court
apprised of his address despite being ordered to do so. See ECF No. 7. Accordingly, the
Court agrees with the recommendation of the Magistrate; this action is DISMISSED without
prejudice pursuant to Rule 41(b) for failing to comply with an Order of this Court.
IT IS SO ORDERED.
s/ Donald C. Coggins, Jr.
United States District Judge
July 3, 2018
Spartanburg, South Carolina