McClam v. Livingston et al

Filing 73

ORDER accepting 70 Report and Recommendation and dismissing the case with prejudice for failure to prosecute. Signed by Chief Judge Terry L Wooten on 6/8/2016. (mwal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Leo McClam,
Plaintiff,
vs.
Dr. NFN Cross,
Defendant.

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Civil Action No. 3:15-cv-00362-TLW

ORDER
Plaintiff, Leo McClam (“Plaintiff”), brought this pro se civil action pursuant to 42
U.S.C. § 1983 alleging violations of his constitutional rights pursuant on January 27, 2015.
(Doc. #1).
The matter now comes before this Court for review of the Report and Recommendation
(Athe Report@) issued on January 5, 2016 by United States Magistrate Judge Shiva V. Hodges, to
whom this case had previously been assigned pursuant to the provisions of 28 U.S.C. § 636(b)
and Local Civil Rule 73.02(B)(2)(d) (DSC). (Doc. #70). In the Report, the Magistrate Judge
recommends that this Court dismiss the above-captioned case with prejudice for failure to
prosecute pursuant to Federal Rule of Civil Procedure 41(b). The Plaintiff did not file objections

to the Magistrate Judge’s Report.1 The deadline for Plaintiff to file objections expired on
January 22, 2016. (See Doc. #70).
This Court is charged with conducting a de novo review of any portion of the Magistrate
Judge’s Report to which a specific objection is registered, and may accept, reject, or modify, in
whole or in part, the recommendations contained in that report. 28 U.S.C. § 636. In the absence
of objections to the Report of the Magistrate Judge, this Court is not required to give any
explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir.
1983).
This Court has carefully reviewed the Magistrate Judge=s Report and Recommendation
and the record in this case. The Plaintiff did not file objections to the Report. Accordingly, for
the reasons articulated by the Magistrate Judge, it is hereby ORDERED that the Magistrate
Judge=s Report and Recommendation is ACCEPTED. (Doc. #70). The above-captioned matter
is hereby dismissed with prejudice for failure to prosecute. See Fed. R. Civ. P. 41(b); Davis v.
Williams, 588 F.2d 69, 70 (4th Cir. 1978). 
IT IS SO ORDERED.
s/ Terry L. Wooten
TERRY L. WOOTEN
Chief United States District Judge
June 8, 2016
Columbia, South Carolina

1
The Magistrate Judge’s Report and Recommendation was mailed to Plaintiff on January 5, 2016. (See
Doc. #71). The mail was not returned to the Court. This Court has ensured that Plaintiff has received, is
receiving, and has the ability to send, all legal mail. Pursuant to Magistrate Judge Hodges’ Order (Doc.
#62), Defendant submitted an affidavit under penalty of perjury affirming that Plaintiff receives and may
send legal mail, and that Plaintiff has received all legal documents mailed to the Institution in which he is
housed. (Docs. #64; 65). In addition, Defendant mailed a second copy of the summary judgment motion
to Plaintiff on November 30, 2015. (Doc. #64 at 1-2). Upon careful review of the record, it appears that
“Plaintiff has access to and receives his legal mail, but he intentionally refuses to accept it or open it.”
(Doc. #69 at 1). Moreover, on December 9, 2015, the Court further ordered Plaintiff to advise whether he
wished to proceed with the case or have it dismissed. (Doc. #66). The Court has given Plaintiff multiple
opportunities to pursue his claims, and concludes that Plaintiff’s lack of response indicates that he wishes
to abandon this action.

2