Taylor v. United Sates Department of Veterans Affairs

Filing 20

ORDER RULING ON REPORT AND RECOMMENDATION. After review, the Court finds no clear error and agrees with the Magistrate Judges findings and analysis. Accordingly, the Court adopts the Magistrate Judges Report (ECF No. 18) and incorporates it herein, and the Court dismisses this action for lack of prosecution in accordance with Rule 41(b) of the Federal Rules of Civil Procedure.IT IS SO ORDERED. Signed by Honorable Bruce Howe Hendricks on 11/17/2022. (apsn)

2:22-cv-02632-BHH

Date Filed 11/17/22

Entry Number 20

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
David Taylor,

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Plaintiff,
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v.
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United States of America,
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Defendant.
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________________________________)

Civil Action No. 2:22-cv-2632-BHH

This matter is before the Court upon Plaintiff’s complaint alleging malpractice or
negligence by the United States Department of Veterans Affairs in furnishing knee-related
healthcare to Plaintiff. Plaintiff initially filed the action in state court, but Defendant removed
the case to this Court on August 10, 2022, and subsequently filed a motion to dismiss
pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure. In accordance
with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), the matter was
referred to a United States Magistrate Judge for preliminary determinations.
On August 19, 2022, the Magistrate Judge issued an order pursuant to Roseboro
v. Garrison, 528 F.2d 309 (4 th Cir. 1975), advising Plaintiff of the dismissal procedure and
the possible consequences if he failed to respond adequately to the motion. Despite this
notice, Plaintiff failed to respond. On October 26, 2022, therefore, the Magistrate Judge
issued a report and recommendation (“Report”) outlining the issues and recommending that
the Court dismiss this action for failure to prosecute, in accordance with Chandler Leasing
Corp. v. Lopez, 669 F.2d 919 (4th Cir. 1982). Attached to the Magistrate Judge’s Report
was a notice advising Plaintiff of his right to file written objections to the Report within
fourteen days of being served with a copy. To date, no objections have been filed.

2:22-cv-02632-BHH

Date Filed 11/17/22

Entry Number 20

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The Magistrate Judge makes only a recommendation to the Court.

The

recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court
is charged with making a de novo determination only of those portions of the Report to
which specific objections are made, and the Court may accept, reject, or modify, in whole
or in part, the recommendation of the Magistrate Judge, or recommit the matter to the
Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). In the absence of specific
objections, the Court reviews the matter only for clear error. See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “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.’”) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
Here, because no objections were filed, the Court has reviewed the record, the
applicable law, and the findings and recommendations of the Magistrate Judge for clear
error. After review, the Court finds no clear error and agrees with the Magistrate Judge’s
findings and analysis. Accordingly, the Court adopts the Magistrate Judge’s Report (ECF
No. 18) and incorporates it herein, and the Court dismisses this action for lack of
prosecution in accordance with Rule 41(b) of the Federal Rules of Civil Procedure.
IT IS SO ORDERED.
/s/Bruce H. Hendricks
United States District Judge
November 17, 2022
Charleston, South Carolina

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