Johnson v. Mitchel et al

Filing 19

ORDER ADOPTING THE REPORT AND RECOMMENDATION, dismissing this action for failure to prosecute under FRCP 41(b), for 16 Report and Recommendations. Signed by Honorable Joseph F Anderson, Jr on May 7, 2010. (kbos)

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

D a v id Waylon Johnson,

#12093-021, P e t i t io n e r ,

vs. M .M . Mitchel, Warden FCI Edgefield, R e sp o n d e n t. ____________________________________

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C/A No. 3:09-2604-JFA-JRM

ORDER

T h e pro se petitioner, David Waylon Johnson, brings this action pursuant to 28 U.S.C. § 2241 challenging the application of good time credits on his federal sentence. T h e respondent filed a motion to dismiss and an order was issued pursuant to R o s e b o ro v. Garrison, 528 F.2d 309 (4th Cir. 1975) notifying petitioner of the summary d is m is s a l procedure and possible consequences if he failed to adequately respond to the m o tio n to dismiss. Petitioner did not respond to the motion. The court then filed a second order on March 31, 2010 allowing the petitioner a d d itio n a l time to respond to the motion to dismiss. However, petitioner did not respond. 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
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).
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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 test 2 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 a recitation. The petitioner 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 April 19, 2010. However, the p e titio n e r 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 t io n , the court finds the Magistrate Judge's recommendation proper and in c o rp o ra ted herein by reference. Accordingly, this action is dismissed for failure to p rose cu te under Fed.R.Civ.P. Rule 41(b). IT IS SO ORDERED.

M a y 7, 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

See Davis v. Williams, 588 F.2d 69, (4th Cir. 1978); Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982).

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