Tate v. State et al

Filing 61

OPINION AND ORDER concurring in the 59 Report and Recommendation and dismissing the complaint as to Defendant Colbert with prejudice for failure to prosecute. Signed by Honorable Margaret B. Seymour on 7/10/2018. (bgoo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Phyllis Tate,

)
) C/A No. 3:16-2715-MBS-SVH
Plaintiff,
)
)
vs.
)
)
OPINION AND ORDER
Officer Colbert,
)
)
Defendant.
)
____________________________________)
Plaintiff Phyllis Tate, proceeding pro se and in forma pauperis, filed the within action on
August 3, 2016, alleging that Defendants Officer Colbert, Lakisha Martin, Beryl Lynette Myers, and
Richland County Sheriff’s Department violated her constitutional rights. See 42 U.S.C. § 1983. In
accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred to United
States Magistrate Judge Shiva V. Hodges for pretrial handling.
The Magistrate Judge twice directed Plaintiff to bring her case into proper form by
completing a summons form listing each Defendant, as well as completing Forms USM-285 for each
Defendant. On November 9, 2016, after Plaintiff failed to respond to the Magistrate Judge, the case
was closed pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute. On April 13, 2017, Plaintiff
moved to reopen the case. The court granted Plaintiff’s motion on November 17, 2017. Plaintiff
was cautioned to comply with all court orders and applicable deadlines. The case was again referred
to the Magistrate Judge.
On November 15, 2017, Plaintiff voluntarily dismissed Defendant Richland County Sheriff’s
Department, and stated in her filing that she required warrants and summonses for Defendants
Colbert, Martin, and Myers only. ECF No. 33. On December 13, 2017, the Magistrate Judge issued
a Report and Recommendation in which she observed that the complaint contains no factual

allegations of constitutional wrongdoing or discriminatory actions attributable to Defendants Martin
and Myers. Accordingly, the Magistrate Judge recommended that these Defendants be dismissed
without prejudice. There being no objections, the court adopted the Report and Recommendation
by order filed January 9, 2018. The matter was recommitted to the Magistrate Judge as to Officer
Colbert only.
This matter now is before the court on motion to dismiss for failure to prosecute filed by
Defendant Colbert on April 20, 2018. See Fed. R. Civ. P. 41(b). It appears Defendant Colbert
attempted to serve Plaintiff with his answer , an amended answer, and interrogatories and requests
for production via certified mail, but the envelopes containing his papers were returned marked
“unclaimed.” Defendant Colbert further notes that Plaintiff has not filed any pleadings or other
documents since November 2017. By order filed April 20, 2018, pursuant to Roseboro v. Garrison,
528 F.2d 309 (4th Cir. 1975), the Magistrate Judge advised Plaintiff of the dismissal procedures and
the possible consequences if she failed to respond adequately. Plaintiff filed no response to
Defendant Colbert’s motion to dismiss. On May 24, 2018, the Magistrate Judge issued an order
directing Plaintiff to advise the court whether she wished to continue with the case, and advising her
that, if she failed to respond, the case was subject to dismissal with prejudice for failure to prosecute.
Plaintiff filed no response. Accordingly, on June 11, 2018, the Magistrate Judge issued a Report and
Recommendation in which she recommended the complaint be dismissed with prejudice for failure
to prosecute. No party filed objections to the Report and Recommendation.
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight. The responsibility for making a final determination remains with this court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). This court may accept, reject, or modify, in whole
2

or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1).
This court may also receive further evidence or recommit the matter to the Magistrate Judge with
instructions. Id. In the absence of a timely filed objection, a district court need not conduct a de
novo review, but instead must “only satisfy itself that there is no clear error on the face of the record
in order to accept the recommendation.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310,
315 (4th Cir. 2005).
The court has thoroughly reviewed the record. The court concurs in the Report and
Recommendation and incorporates it herein by reference. The complaint is dismissed as to
Defendant Colbert with prejudice for failure to prosecute.
IT IS SO ORDERED.

/s/ Margaret B. Seymour
Senior United States District Judge
Columbia, South Carolina
July 10, 2018

3