Bennett v. Olson et al

Filing 37

ORDER RULING ON REPORT AND RECOMMENDATIONS. The court finds the Magistrate Judges recommendation proper and incorporated herein by reference. Accordingly, this action is dismissed with prejudice for failure to prosecute under Rule 41(b) and any outstanding motions are deemed moot. Signed by Honorable Joseph F Anderson, Jr on 10/20/2010. (dsto, )

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U N I T E D STATES DISTRICT COURT D IS T R IC T OF SOUTH CAROLINA T ra c y Bennett, P l a in tif f , vs. B o b Olson a/k/a Olsen, Food Service; Mr. M ic h a el McCall, Warden; Steven J. Reck, F o o d Service Branch Chief; Mr. Kirsch, Food S e rv ice Branch; Mr. Claytor, Associate W a r d e n ; Ms. Cocciolone, IGC; Ofc. Sewell a /k /a Sowell; Ofc. Derrick Lindsay a/k/a L ind sey; Mr. Najjar, D e f e n d a n ts . ____________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) C/A No. 4:09-3338-JFA-TER ORDER T h e pro se plaintiff, Tracy Bennett, brings this action pursuant to 42 U.S.C. 1983 a lle g in g constitutional violations by the defendants. The 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 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 i s t r a te Judge has considered the Fourth Circuit's four-prong test2 in determining his 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). Davis v. Williams, 588 F.2d 69 (4th Cir. 1978); see also Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989); and Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982). 2 1 1 r e 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 defendants have filed a motion for summary judgment. An order was then issued p u rs u a n t to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) notifying plaintiff of the s u m m a ry dismissal procedure and possible consequences if he failed to adequately respond to the motion for summary judgment. Plaintiff did not respond to the motion. The plaintiff was further 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 September 8, 2010. However, the p lain tiff did not file any objections to the Report within the time limits prescribed. It appears th a t plaintiff has abandoned his lawsuit as to these defendants. After a careful review of the record, the applicable law, and the Report and R e c o m m e n d a tio n , the court finds the Magistrate Judge's recommendation proper and in c o rp o ra te d herein by reference. Accordingly, this action is dismissed with prejudice for f a ilu re to prosecute under Rule 41(b) and any outstanding motions are deemed moot. IT IS SO ORDERED. O c to b e r 20, 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 2

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