Straws v. Padula et al

Filing 57

ORDER RULING ON REPORT AND RECOMMENDATIONS. The court adopts the Magistrate Judges Report and Recommendation and incorporates it herein. It is therefore ORDERED that Plaintiffs action is hereby DISMISSED with prejudice. Signed by Honorable J Michelle Childs on 11/28/2011. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Jabber J. Straws #231018,
aka Jabber Jomo Straws,

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Plaintiff,
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v.
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A.J. Padula, Warden of Lee Correction
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Institution of the South Carolina Dept. of
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Corrections; Susan Richie, Head of
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Classification of the South Carolina Dept. of)
Corrections,
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Defendant.
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____________________________________)

C.A. No. 4:10-cv-01957-JMC

ORDER

This matter is before the court on the Magistrate Judge’s Report and Recommendation [Doc.
52]. Plaintiff is proceeding pro se on his complaint for various state and federal causes of action.
The Magistrate Judge’s Report and Recommendation, filed on May 13, 2011, recommends
that Plaintiff’s complaint be dismissed for failure to prosecute pursuant to Fed. R. Civ. P. 41(b) with
prejudice. The Report and Recommendation sets forth in detail the relevant facts and legal standards
on this matter, and the court incorporates the Magistrate Judge’s recommendation herein without
a recitation.
The Magistrate Judge’s Report and Recommendation is made in accordance with 28 U.S.C.
§ 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. 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 is charged with making a de novo determination of those

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portions of the Report and Recommendation to which specific objections are made, and the court
may accept, reject, or modify, in whole or in part, the Magistrate Judge’s recommendation or
recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
Plaintiff was advised of his right to file objections to the Report and Recommendation [Doc.
52-1]. Plaintiff filed timely objections to the Report and Recommendation. [Doc. 54].
The Magistrate Judge recommends dismissal of this action based on Plaintiff’s failure to
respond to Defendants’ Motion for Summary Judgment [Doc. 47] or the Magistrate Judge’s order
to require him to respond to such motion [Doc. 48]. Therefore, the Magistrate Judge concluded that
Plaintiff abandoned his lawsuit. [Report at 2, Doc. 52]. In his objections to the Report and
Recommendation, Plaintiff claims that it was impossible for him to comply with the court’s order
to respond to Defendants’ Motion for Summary Judgment because Defendants did not respond
completely to Plaintiff’s request for discovery, missed the time to respond and requested an
extension, and the court failed to respond to Plaintiff’s motion to the court for Defendants to respond
adequately to his discovery requests. Plaintiff requests that the court not dismiss the case, but
instead schedule it for trial.
The record reveals that Plaintiff did not object to Defendants’ request for an extension of
time to file dispositive motions in this case; Plaintiff requested that the court require Defendants to
respond to his discovery requests so that he could adequately prepare his case. [See Response to
Notice of Motion and Motion for Extension of Time on Behalf of the Defend[a]nts, Doc. 27 at 1-2,
filed on December 3, 2010]. Defendants responded that they inadvertently omitted responses to
Plaintiff’s requests and needed additional time to respond and another extension to file dispositive
motions. [See Notice of Motion and Second Motion for Extension of Time on Behalf of Defendants,

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Doc. 29, filed December 6, 2010]. On December 10, 2010, Plaintiff filed a second Motion to
Compel requesting Defendants’ responses to his discovery requests and a motion to extend the time
to file motions in this case. [Docs. 31 and 32]. By order dated January 19, 2011 [Doc. 39], the
Magistrate Judge granted both Plaintiff and Defendants’ requests for extensions of time to file
dispositive motions . The Magistrate Judge further granted Defendants’ motion for extension of
time to file responses to Plaintiff’s discovery requests, and therefore, determined that Plaintiff’s
Motion to Compel was moot since Defendants had already responded to Plaintiff’s discovery
requests by that time. By order dated February 1, 2011 [Doc. 43], the Magistrate Judge granted
another request of Defendants to extend the time to file dispositive motions. Thereafter, Defendants
filed their Motion for Summary Judgment [Doc. 47] and Plaintiff failed to respond despite notice
from the Magistrate Judge to do so. Furthermore, Plaintiff had neither filed any motions to compel
Defendants’ responses to Plaintiff’s discovery nor any dispositive motions of his own. Therefore,
the Magistrate Judge could not have known that Plaintiff was not satisfied with Defendants’ late
responses to Plaintiff’s discovery requests.
After a thorough review of the Report and Recommendation and the record in this case, the
court adopts the Magistrate Judge’s Report and Recommendation and incorporates it herein.
It is therefore ORDERED that Plaintiffs’ action is hereby DISMISSED with prejudice.
IT IS SO ORDERED.

Greenville, South Carolina
November 28, 2011

United States District Judge

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