Stewart v. Pate
ORDER affirming 20 Report and Recommendation, dismissing case with prejudice for lack of prosecution and for failure to comply with this court's orders. It is further ordered that a certificate of appealability is denied. Signed by Honorable David C Norton on 7/9/2015.(eric, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Morris Stewart, also known as Morris
Fitzgerald Stewart, Jr., #343460,
John Pate, Warden,
C/A No. 2:14-cv-4722 DCN
The above referenced case is before this court upon the magistrate judge's recommendation that this action be dismissed with prejudice for lack of prosecution and for failure to comply
with the court’s orders, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
This court is charged with conducting a de novo review of any portion of the magistrate
judge's report to which a specific objection is registered, and may accept, reject, or modify, in
whole or in part, the recommendations contained in that report. 28 U.S.C. § 636(b)(1).
However, absent prompt objection by a dissatisfied party, it appears that Congress did not intend
for the district court to review the factual and legal conclusions of the magistrate judge. Thomas
v Arn, 474 U.S. 140 (1985). Additionally, any party who fails to file timely, written objections
to the magistrate judge's report pursuant to 28 U.S.C. § 636(b)(1) waives the right to raise those
objections at the appellate court level. United States v. Schronce, 727 F.2d 91 (4th Cir. 1984),
cert. denied, 467 U.S. 1208 (1984 ).1 No objections have been filed to the magistrate judge’s
In Wright v. Collins, 766 F.2d 841 (4th Cir. 1985), the court held "that a pro se litigant
must receive fair notification of the consequences of failure to object to a magistrate judge's
report before such a procedural default will result in waiver of the right to appeal. The notice
must be 'sufficiently understandable to one in appellant's circumstances fairly to appraise him
report and recommendation.
A de novo review of the record indicates that the magistrate judge's report accurately
summarizes this case and the applicable law. Accordingly, the magistrate judge’s report and
recommendation is AFFIRMED, and this action is DISMISSED with prejudice for lack of
prosecution and for failure to comply with this court’s orders, pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that a certificate of appealability is denied because
petitioner has failed to make “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2).
AND IT IS SO ORDERED.
David C. Norton
United States District Judge
July 9, 2015
Charleston, South Carolina
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified that any right to appeal this Order is governed by Rules
3 and 4 of the Federal Rules of Appellate Procedure.
of what is required.'" Id. at 846. Plaintiff was advised in a clear manner that his objections had
to be filed within ten (10) days, and he received notice of the consequences at the appellate
level of his failure to object to the magistrate judge's report.
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