Beaufort v. Ralph H. Johnson
Filing
25
ORDER AND OPINION adopting 19 Report and Recommendation of Magistrate Judge Bristow Marchant. The Report and Recommendation of the Magistrate Judge (Dkt. No. 19.) is adopted as the Order of the Court, and Plaintiff's case is dismissed without prejudice. Signed by Honorable Richard M. Gergel on 02/12/2019. (egra, )
IN THE UNITED ST ATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
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Plaintiff,
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v.
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The U~ited States of America,
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Defendant.
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Moses Beaufort,
Civil Action No. 2:18-1569-RMG
ORDER AND OPINION
Before the Court is the Report and Recommendation ("R & R") of the Magistrate Judge
(Dkt. No. 19.) recommending the Court dismiss this case. For the reasons set below, the Court
adopts the R & R as the order of the Court and the case is dismissed.
I.
Background
On June 8, 2018, Plaintiff Moses Beaufort filed a Complaint under the Federal Tort Claims
Act against Ralph H. Johnson VA Medical Center. (Dkt. No. 1.) On August 14, 2018, the
Magistrate Judge gave Plaintiff twenty-one days to bring his complaint into proper form. (Dkt. No.
8.) Plaintiff substantially complied with the order, and filed an amended complaint on August 22,
2018. (Dkt. Nos. 10, 16.) The Magistrate Judge directed the Clerk to issue a summons to the
Plaintiff for service. (Dkt. No. 16.) On January 18, 2019, the Magistrate Judge issued an R&R and
advised Plaintiff to provide the Court with proof of service on the Defendant, or present good cause
for his failure to do so, within ten days and recommended dismissing the case if Plaintiff failed to
do so. (Dkt. No. 19.) This Court extended the period for another ten days on January 29, 2019.
(Dkt. No. 24.) As of the date of this order, Plaintiff failed to provide the Court with proof of
service on the Defendant or present good cause for such failure.
II.
Legal Standard
A.
Pro Se Pleadings
This Court liberally construes complaints filed by pro se litigants to allow the development
of a potentially meritorious case. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404
U.S. 519 (1972). The requirement ofliberal construction does not mean that the Court can ignore
a clear failure in the pleadings to allege facts which set forth a viable federal claim, nor can the
Court assume the existence of a genuine issue of material fact where none exists. See Weller v.
Dep'tofSocial Services, 901F.2d387 (4th Cir. 1990).
B.
Report and Recommendation
The Magistrate Judge makes only a recommendation to this Court that has no presumptive
weight. The responsibility to make a final determination remains with the Court. See Mathews v.
Weber, 423 U.S. 261, 270-71 (1976). The Court may "accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge." 28 U.S.C. ยง 636(b)(l). This
Court must make a de novo determination of those portions of the R & R Plaintiff specifically
objects. Fed. R. Civ. P. 72(b)(2). Where Plaintiff fails to file any specific objections, "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
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation omitted). "Moreover,
in the absence of specific objections to the R & R, the Court need not give any explanation for
adopting the recommendation." Wilson v. SC Dept ofCorr., No. 9:14-CV-4365-RMG, 2015 WL
1124701, at *1 (D.S.C. Mar. 12, 2015). See also Camby v. Davis, 718 F.2d 198, 200 (4th Cir.
1983 ). Plaintiff did not file objections in this case, and the R & R is reviewed for clear error.
III. Discussion
The Magistrate Judge issued an order authorizing service upon receipt of Plaintiffs amended
complaint. The order specifically advised Plaintiff that he is responsible for service of process.
Federal Rule of Civil Procedure Rule 4(m) states that "[i]f a defendant is not served within ninety
(90) days after the complaint is filed, the court ... must dismiss the action without prejudice against
that defendant or order that service be made within a specified time." The time for service began
to run on October 16, 2018, and the ninety (90) day period for service provided by Rule 4(m)
expired on January 14, 2019. The Magistrate granted Plaintiff an additional ten days to submit
proof of service after the filing of the R & R on January 18, 2019, warning Plaintiff that the failure
to properly serve the complaint would result in this case being dismissed. (Dkt No. 19.) On January
29, 2019, this Court granted the Plaintiff an additional ten days to submit proof of service. (Dkt.
No. 24.) Plaintiff failed to provide the Court with proof of service or present good cause to the
Court for failure to serve the Defendant. Therefore, the case is dismissed. See Fed.R.Civ.P. 4(m).
IV. Conclusion
For the foregoing reasons, the R & R of the Magistrate Judge (Dkt. No. 19.) is ADOPTED
as the Order of the Court, and Plaintiffs case is DISMISSED WITHOUT PREJUDICE.
AND IT IS SO ORDERED.
United States District Court
February l"'"L , 2019.
Charleston, South Carolina
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