North v. Dorn VA Hospital et al

Filing 15

ORDER AND OPINION RULING ON REPORT AND RECOMMENDATION accepting 10 Report and Recommendation and dismissing without prejudice North's Complaint pursuant to Rule 41(b) of the FRCP; denying as moot 2 Motion for Leave to Proceed in forma pauperis. Signed by Honorable J Michelle Childs on 9/3/2021. (asni, )

3:20-cv-03952-JMC

Date Filed 09/07/21

Entry Number 15

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Albert Neal North,1

) Civil Action No.: 3:20-cv-03952-JMC
)
)
Plaintiff,
)
)
v.
)
ORDER AND OPINION
)
Dorn VA Hospital, a/k/a VA Dorn
)
Hospital, and Department of
)
Veterans Torts Law Group,
)
)
Defendants.
)
____________________________________)
Plaintiff Albert Neal North, proceeding pro se,2 filed this action against Defendants Dorn
VA Hospital and Department of Veterans Torts Law Group seeking monetary damages for alleged
violations of the “Tort Claims Act evidence negligent wrongful act.” (ECF No. 1 at 3.) Plaintiff
states the following claim:
twice have flasback [sic] Because Doctor wearing clothing in Native attaire [sic]
Vietnamese like war clothing told VA Dorn twice did nothing situation cause my
mine [sic] trigger worset [sic] and body take all kinds of Prazostin and others.
(Id. at 5.)
This matter is before the court on the Magistrate Judge’s Report and Recommendation
recommending that the court sua sponte dismiss North’s action for failure to prosecute pursuant to
1

As the Magistrate Judge noted, Plaintiff’s middle name is sometimes spelled “Neil” in his
complaint, but the medical records attached indicate his middle name is “Neal.” (ECF No. 10
(citing ECF Nos. 1, 1-1).)
2
“Because he is a pro se litigant, Plaintiff’s pleadings are construed liberally by the court and held
to a less stringent standard than attorneys’ formal pleadings.” Simpson v. Florence Cty. Complex
Solicitor’s Office, Civil Action No.: 4:19-cv-03095-JMC, 2019 WL 7288801, at *2 (D.S.C. Dec.
30, 2019) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). “This, however, ‘does
not transform the court into an advocate’ for Plaintiff; the court is not required to recognize
Plaintiff’s claims if there is clearly no factual basis supporting them.” Id. (quoting Weller v. Dep't
of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990)).
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Rule 41(b) of the Federal Rules of Civil Procedure. (ECF No. 10 at 4.) In accordance with 28
U.S.C. § 636(b) and Local Rule 73.02(B)(2)(g) (D.S.C.), the matter was referred to a United States
Magistrate Judge for pretrial handling. On December 15, 2020, the Magistrate Judge issued the
aforementioned Report and Recommendation recommending dismissal without prejudice. (ECF
No. 10.) For the reasons set forth below, the court ACCEPTS the Magistrate Judge’s Report and
Recommendation and sua sponte dismisses the instant action without prejudice.
I.

BACKGROUND

On November 12, 2020, North initiated the instant action. (See ECF No. 1.) A week later,
on November 19, 2020, the Magistrate Judge: (1) ordered North to complete the documents
necessary to advance his case by December 10, 2020; and (2) issued notice to North providing
reasons why his complaint was subject to dismissal. (ECF Nos. 6, 7.) After North failed to comply
with the November 19, 2020 order, on December 15, 2020, the Magistrate Judge issued the
aforementioned Report recommending that the court dismiss the action against it without
prejudice. (ECF No. 10.)
II.

LEGAL STANDARD

The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight. The responsibility to make a final determination remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The court reviews de novo only
those portions of a magistrate judge’s report and recommendation to which specific objections are
filed and reviews those portions which are not objected to for clear error, including those portions
to which only “general and conclusory” objections have been made. See Diamond v. Colonial Life
& Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.
1983); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The court may accept, reject, or

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modify, in whole or in part, the recommendation of the magistrate judge or recommit the matter
with instructions. See 28 U.S.C. § 636(b)(1).
III.
A.

ANALYSIS

The Magistrate Judge’s Review
In the Report, the Magistrate Judge discussed a district court’s “well established” authority

to dismiss an action sua sponte for failure to prosecute. (ECF No. 10 at 4.) The Magistrate Judge
observed that this authority does not solely emanate from Rule 41(b): it is an “inherent power”
born out of “the control necessarily vested in courts to manage their own affairs so as to achieve
the orderly and expeditious disposition of cases.” (Id. (quoting Link v. Wabash R.R. Co., 370 U.S.
626, 630–31 (1962)).) After considering North’s failure to comply with the court’s order to
complete the documents necessary to advance his case, the Magistrate Judge recommended that
the court sua sponte dismiss the action without prejudice for failure to prosecute pursuant to Rule
41(b). (Id.)
B.

No Objections by North
The Magistrate Judge advised the parties of their right to file specific written objections to

the Report within fourteen (14) days of the date of service. (ECF No. 10-1 at 1 (citing 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72(b)).) However, none of the parties filed any objections before the
deadline.
In the absence of a timely objection to the Magistrate Judge’s Report, the court is not
required to provide an explanation for adopting the recommendation. See Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983). Rather, “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 &

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Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting an advisory committee note on Fed. R.
Civ. P. 72). Furthermore, failure to file specific written objections to the Report results in a party’s
waiver of the right to appeal from the judgment of the District Court based upon such
recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985).
After conducting a thorough review of the Report and record in this case, the court
concludes that the Report provides an accurate summary of the facts and law and does not contain
any clear error.

Therefore, the court ACCEPTS the Magistrate Judge’s Report and

Recommendation (ECF No. 10) and DISMISSES WITHOUT PREJUDICE North’s Complaint
(ECF No. 1) pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The court further
DENIES AS MOOT North’s Application to Proceed in District Court without Prepaying Fees or
Costs. (ECF No. 2.)
IT IS SO ORDERED.

United States District Judge
September 3, 2021
Columbia, South Carolina

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