Green v. Richland County Sheriff's Dept et al

Filing 49

ORDER RULING ON REPORT AND RECOMMENDATIONS adopting 45 Report and Recommendations, denying 37 Motion to Dismiss for Lack of Prosecution filed. Signed by Honorable Joseph F Anderson, Jr on 01/09/2012. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Charles Green, #200072,
Plaintiff,
vs.
Sheriff Leon Lott, and Deputy Sheriff
Tom Hodges;
Defendants.

)
)
)
)
)
)
)
)
)
)
)

C/A No.: 3:10-cv-3162-JFA-JRM

ORDER

The pro se petitioner, Charles Green, brings this civil action pursuant to 42 U.S.C.
§ 1983 alleging that his constitutional rights were violated through the use of excessive
force during his arrest on January 17, 2008. This matter is before the court on the
Defendants’ motion to dismiss for failure to prosecute.
The Magistrate Judge assigned to this action1 has prepared a thorough Report and
Recommendation and opines that Defendants’ motion to dismiss for failure to prosecute
should be denied. The Report sets forth in detail the relevant facts and standards of law
on this matter, and the court incorporates such without a recitation. Defendants’ motion
to dismiss stems in part from Plaintiff’s failure to cooperate during his deposition.
Plaintiff has made three requests for counsel to be appointed to assist him in his case.

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 and Recommendation 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. See 28 U.S.C. § 636(b)(1).
1

1

The Magistrate concluded that Plaintiff’s failure to cooperate during the deposition was
due in part to his confusion regarding Plaintiff’s pending motions for appointment of
counsel. The Magistrate therefore granted Plaintiff’s third motion for appointment of
counsel in part and appointed counsel for the limited purpose of representing Plaintiff
during the taking of his deposition. Robert J. Butcher of the Camden Law Firm was
appointed and has filed a notice of appearance in this case.
The Defendants were advised of their right to file objections to the Report and
Recommendation, which was entered on the docket on December 7, 2011.

The

Defendants have not filed any objections. In the absence of specific objections to the
Report of the Magistrate Judge, this court is not required to given any explanation for
adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
After carefully reviewing the applicable laws, the record in this case, and the
Report and Recommendation, this court finds the Magistrate Judge’s recommendation
fairly and accurately summarizes the facts and applies the correct principles of law. The
Report is incorporated herein by reference.
Accordingly, the Defendants’ motion to dismiss is denied.

The Plaintiff is

directed to participate in the taking of his deposition should Defendants attempt to do so
again.

Appointed counsel shall assist Plaintiff during the taking of his deposition.

Finally, the court repeats the Magistrate’s warning that Plaintiff is responsible for
prosecuting the present action and should he fail to do so, his action may be dismissed.
See Fed. R. Civ. P. 41(b).

2

IT IS SO ORDERED.

January 9, 2012
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

3