Smith v. Johnson et al

Filing 49

ORDER ADOPTING 41 REPORT AND RECOMMENDATIONS. This action is DISMISSED with prejudice under Rule 41(b) for failure to comply with the Courts orders. Defendant's pending Motion to dismiss 44 is DISMISSED as MOOT. Signed by Honorable Henry F Floyd on 3/31/09. (rpol, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION RUSSELL D. SMITH, Plaintiff, vs. KEVIN JOHNSON and DWIGHT L. STEWART, JR., Defendants. CIVIL ACTION NO. 2:06-3553-HFF-BM ORDER This case was filed under the Americans with Disabilities Act, 42 U.S.C. 12117. Plaintiff 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 that the action be dismissed with prejudice under Federal Rule of Civil Procedure 41(b) for failure to comply with the Court's 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 February 6, 2009, but Plaintiff failed to file any objections to the Report. In the absence of such objections, the Court is not required to give any explanation for adopting the recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). 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 that the action is DISMISSED with prejudice under Rule 41(b) for failure to comply with the Court's orders. In light of the foregoing, Defendant's pending Motion to dismiss is DISMISSED as MOOT. IT IS SO ORDERED. Signed this 31st day of March, 2009, in Spartanburg, South Carolina. s/ Henry F. Floyd HENRY F. FLOYD UNITED STATES DISTRICT JUDGE ***** NOTICE OF RIGHT TO APPEAL The parties are hereby notified of the right to appeal this Order within 30 days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure. 2

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