Miller v. Roland

Filing 26

ORDER ADOPTING THE REPORT AND RECOMMENDATION, dismissing this action with prejudice for failure to prosecute under Rule 41(b), for 24 Report and Recommendations. Signed by Honorable Joseph F Anderson, Jr on April 22, 2010. (kbos)

U N I T E D STATES DISTRICT COURT D IS T R IC T OF SOUTH CAROLINA

S teve E. Miller, P l a in tif f , vs. V irg in ia Roland, D e f e n d a n t. ____________________________________

) ) ) ) ) ) ) ) )

C/A No. 3:09-891-JFA-JRM

ORDER

T h e pro se plaintiff, Steve E. Miller, brings this action pursuant to 42 U.S.C. Section 1 9 8 3 . He is involuntarily committed to the Sexually Violent Predator Treatment Program (S V P T P ) at the South Carolina Department of Mental Health. T h e 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 action should be dismissed for lack of p ro s e c u tio n pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. In addition, the M a g istra te Judge has considered the Fourth Circuit's four-prong test2 in determining his re c o m m e n d a tio n that the action should be dismissed. The Report sets forth in detail the re le v a n t facts and standards of law on this matter, and the court incorporates such without

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).
2

1

See Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982).

1

a recitation. The defendant filed a motion for summary judgment. An order was then issued p u rs u a n t to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) notifying plaintiff of the s u m m a ry dismissal procedure and possible consequences if he failed to adequately respond to the motion for summary judgment. Plaintiff did not respond to the motion. The Magistrate Judge notes that on March 5, 2010, an order was entered providing the p lain tiff with an opportunity to advise the court whether he wished to continue to prosecute this case. The plaintiff failed to respond to that order. T h e plaintiff was further advised of his right to file objections to the Report and R e c o m m e n d a t io n , which was entered on the docket on March 29, 2010. However, the p la in tif f did not file any objections to the Report within the time limits prescribed. After 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 in c o rp o ra te d herein by reference. Accordingly, this action is dismissed with prejudice for f a ilu re to prosecute under Rule 41(b) and all outstanding motions are deemed moot. IT IS SO ORDERED.

A p ril 22, 2010 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

2