Stevenson v. Rinaman et al

Filing 36

ORDER ADOPTING THE REPORT AND RECOMMENDATION, dismissing this action for failure to prosecute under Rule 41(b), for 33 Report and Recommendations. Signed by Honorable Joseph F Anderson, Jr on September 11, 2008. (kbos)

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U N I T E D STATES DISTRICT COURT D IS T R IC T OF SOUTH CAROLINA R o b e rt Stevenson, #298765, P l a in tif f , vs. S g t. Rinaman; Cpt. Fogel; and Sheriff Mike Hunt, D e f e n d a n ts . ______ _ _ _ _ _ _ _ _ _ _ _ _______________________ ) C/A No. 3:07-3546-JFA-JRM ) ) ) ) ORDER ) ) ) ) ) T h e pro se plaintiff, Robert Stevenson, brings this action pursuant to 42 U.S.C. 1 9 8 3 . The Magistrate Judge assigned to this action 1 has prepared a Report and R e c o m m e n d a tio n wherein he suggests that this court should dismiss the action for lack of p ro se c u tio n pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The Report sets fo rth in detail the relevant facts and standards of law on this matter, and the court in c o rp o ra te s such without a recitation. The plaintiff was advised of his right to file objections to the Report and R e c o m m e n d a tio n , which was entered on the docket on August 12, 2008. However, the p lain tiff did not file any objections 2 to the Report within the time limits prescribed. In The Magistrate Judge's review is made in accordance with 28 U.S.C. 636(b)(1)(B) and Local Civil Rule 73.02. 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. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions of the Report to which specific objection is 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). Under 28 U.S.C. 636(b)(1), the district court is obligated to conduct a de novo review of every portion of the Magistrate Judge's Report to which objections have been filed. The court reviews the Report only for clear error in the absence of an objection. See Diamond v. Colonial Life & Accident 2 1 a d d itio n , the plaintiff did not respond to the defendants' motion for summary judgment3 d e sp ite the court advising him, nor did he respond to the court's order allowing him an a d d itio n a l fifteen days to advise the court whether he wished to continue to prosecute this a c ti o n . A f te r a careful review of the record, the applicable law, and the Report and R e c o m m e n d a tio n , the court finds the Magistrate Judge's recommendation proper and i n c o r p o r a te d herein by reference. Accordingly, this action is dismissed for failure to p rose cu te under Rule 41(b). IT IS SO ORDERED. S e p te m b e r 11, 2008 C o lu m b ia , South Carolina J o s e p h F. Anderson, Jr. U n ite d States District Judge Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to timely file specific written objections to the Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985). An order was issued pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) notifying petitioner of the summary dismissal procedure and possible consequences if he failed to adequately respond to the motion for summary judgment. Plaintiff did not respond to the motion. 3

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