Croft et al v. Major et al

Filing 42

ORDER RULING ON REPORT AND RECOMMENDATIONS. The within action is dismissed without prejudice pursuant to Rule 41(b). Signed by Honorable Margaret B Seymour on 10/26/2010. (dsto, )

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IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA ) ) C/A No. 4:10-1164-MBS Plaintiff, ) ) vs. ) ) ORDER S i m o n Major, Director of SLRDC; ) D . Scott Cook, Dietician of SLRDC; in ) t h e i r individual and personal capacities, ) ) D e fe n d a n t s . ) ____________________________________) A t the time of the underlying complaint, Plaintiff Joseph M. Croft was detained at the SumterLe e Regional Detention Center in Sumter, South Carolina. Plaintiff, proceeding pro se, alleges that h e was denied adequate portions of food and suffered extreme hunger pains as a result. Plaintiff s e e k s damages pursuant to 42 U.S.C. 1983. In accordance with 28 U.S.C. 636(b) and Local Rule 73.02, D.S.C., the within action was re fe rre d to United States Magistrate Judge Thomas E. Rogers, III for pretrial handling. On June 2, 2 0 1 0 , the Magistrate Judge issued an order in which he informed Plaintiff of his obligation to keep th e court apprised of his current address. Order 3, ECF No. 15. On June 11, 2010, the envelope c o n ta in i n g Plaintiff's copy of the order was returned to the Office of the Clerk of Court, marked " R E T U R N TO SENDER - NOT HERE." See ECF No. 21. Additional pieces of mail also were re tu rn e d to the Office of the Clerk of Court. See ECF Nos. 22, 27. O n August 25, 2010, Defendants Simon Major and Scott Cook filed a motion to dismiss on th e grounds that Plaintiff had failed to update his address with the court and appeared to no longer d e s ire to go forward with the action. Defendants thus moved the court to dismiss the action for fa ilu r e to prosecute. Motion to Dismiss on Behalf of Defendants Simon Major and Scott Cook, ECF J o s e p h M. Croft, No. 30. By order filed August 26, 2010, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Plaintiff was advised of the dismissal procedures and the possible consequences if he failed to respond adequately. The envelope containing Plaintiff's copy of the Roseboro order was returned to the Office of the Clerk of Court on September 2, 2010, marked "RETURN TO SENDER." ECF N o . 33. O n October 1, 2010, the Magistrate Judge issued a Report and Recommendation in which he d e t e rm in e d that Plaintiff had abandoned the within case. The Magistrate Judge recommended that D e f e n d a n t s ' motion be granted and the case dismissed with prejudice pursuant to Fed. R. Civ. P. 4 1 (b ) . The envelope containing Plaintiff's copy of the Report and Recommendation was returned to the Office of the Clerk of Court on October 12, 2010 marked "RETURN TO SENDER - NOT H ER E." The Magistrate Judge makes only a recommendation to this court. The recommendation has n o presumptive weight. The responsibility for making a final determination remains with this court. M a th e w s v. Weber, 423 U.S. 261, 270 (1976). The court is charged with making a de novo d e t e r m i n a t io n of any portions of the Report of Magistrate Judge to which a specific objection is m a d e . The court may accept, reject, or modify, in whole or in part, the recommendation made by the M a gis tra te Judge or may recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. 636(b)(1). As noted, Plaintiff was instructed by order filed June 2, 2010 to keep the Clerk of Court a d v is e d in writing if his addressed changed for any reason. However, it does not appear that Plaintiff r e c e i v e d the June 2, 2010 order. Because Plaintiff did not receive a copy of the order advising him o f his obligation, the court is not inclined to dismiss the case with prejudice. Nevertheless, it appears th a t Plaintiff no longer wishes to pursue this action. The within action is dismissed without 2 p re ju d ic e pursuant to Rule 41(b). IT IS SO ORDERED. / s / Margaret B. Seymour United States District Judge C o l u m b ia , South Carolina O c to b e r 26, 2010. NOTICE OF RIGHT TO APPEAL Plaintiff is hereby notified of the right to appeal this order pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure. 3

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