Hancock v. Shuttles et al

Filing 44

ORDER adopting 30 Report and Recommendations of Magistrate Judge Mary Gordon Baker. Defendant D. Bussy is dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m). Signed by Honorable Donald C Coggins, Jr on 12/13/2018. (hada, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
David Mills Hancock, #303839,

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Plaintiff,
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v.
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Shelly Suttles, et al,
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Defendants.
)
________________________________ )

Case No. 2:18-cv-00974-DCC-MGB

ORDER

This matter is before the Court on Plaintiff’s 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 Mary Gordon Baker for pre-trial proceedings and a Report and
Recommendation (“Report”). By Order dated April 27, 2018, service was authorized on
the Defendants; on June 6, 2018, the summons was returned unexecuted for Defendant
D. Bussy. ECF Nos. 13, 18. The Magistrate Judge gave Plaintiff two opportunities to
provide additional information necessary to accomplish service; however, Plaintiff failed
to respond to the Orders. See ECF No. 20, 25. On October 5, 2018, the Magistrate
Judge issued a Report recommending that Defendant D. Bussy be dismissed for failure
to prosecute pursuant to Federal Rule of Civil Procedure 4(m). ECF No. 30. The
Magistrate Judge advised Plaintiff of the procedures and requirements for filing

objections to the Report and the serious consequences if he failed to do so. Plaintiff
has filed no objections, and the time to do so has passed.1
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 28 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)).
After considering the record in this case, the applicable law, and the Report of
the Magistrate Judge, the Court finds no clear error and agrees with the Report’s
recommendation. Accordingly, the Court adopts the Report by reference in this Order.
Defendant D. Bussy is dismissed without prejudice pursuant to Federal Rule of Civil
Procedure 4(m).

1

The Court notes that several pieces of mail sent to Plaintiff, including the
Report, have been returned as undeliverable, see, e.g., ECF Nos. 29, 32, 42; Plaintiff
has been told that it is his responsibility to update his address with the Court, ECF No.
6.

IT IS SO ORDERED.
s/ Donald C. Coggins, Jr.
United States District Judge
December 13, 2018
Spartanburg, South Carolina

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.