Holmes v. Drago

Filing 32

ORDER adopting 26 Report and Recommendations of Magistrate Judge Bruce Howe Hendricks, dismissing this action with prejudice for lack of prosecution and for failure to comply with this court's orders. Signed by Honorable Timothy M Cain on 10/31/11.(hhil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
George Holmes,

)
)
Plaintiff,
)
)
v.
)
)
MD Paul C. Drago,
)
)
Defendant.
)
____________________________________)

C.A. No.: 2-11-01106-TMC

ORDER

This matter is before the court on the Magistrate Judge’s Report and Recommendation
(Dkt. #26). The pro se Plaintiff filed this action seeking relief pursuant to 42 U.S.C. § 1983.
The Magistrate Judge’s Report and Recommendation, filed on October 6, 2011, recommends
that this action be dismissed with prejudice for lack of prosecution and for failure to comply with
this Court’s orders. (Dkt. # 26). The Report and Recommendation sets forth in detail the
relevant facts and legal standards on this matter, and the court incorporates the Magistrate
Judge’s recommendation herein without a recitation.
The Magistrate Judge’s Report and Recommendation is made in accordance with 28
U.S.C. § 636(b)(1) 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 this court.
See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de
novo determination of those portions of the Report and Recommendation to which specific
objections are made, and the court may accept, reject, or modify, in whole or in part, the

1

Magistrate Judge’s recommendation or recommit the matter with instructions. See 28 U.S.C. §
636(b)(1).
Plaintiff was advised of his right to file objections to the Report and Recommendation
(Dkt. # 26 at 3). However, Plaintiff filed no objections to the Report and Recommendation.
In the absence of objections to the Magistrate Judge’s Report and Recommendation, this
court is not required to provide an explanation for adopting the recommendation. See Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, “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) (quoting Fed. R. Civ. P. 72
advisory committee’s note). Furthermore, failure to file specific written objections to the Report
and Recommendation results in a party’s waiver of the right to appeal from the judgment of the
District Court based upon such recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474
U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727
F.2d 91 (4th Cir. 1984).
On October 6, 2011, the Magistrate Judge filed the Report and a copy of it was placed in
the mail to Plaintiff. (Dkt. # 27).

Plaintiff has not objected to the Magistrate’s recommendation

that this action be dismissed. Based on the foregoing, it appears the Plaintiff no longer wishes
to pursue this action.
After a thorough review of the Report and Recommendation and the record in this case, the court
adopts the Magistrate Judge’s Report and Recommendation (Dkt. # 26) and incorporates it herein

Accordingly, this action is DISMISSED with prejudice for lack of prosecution and for failure to

2

comply with this court’s orders, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure
and the factors outlined in Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir.1982).
IT IS SO ORDERED.

s/Timothy M. Cain
United States District Judge
Greenville, South Carolina
October 31, 2011

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

3