Herron v. Horry County South Carolina et al

Filing 109

ORDER RULING ON REPORT AND RECOMMENDATION. After careful review of the Report and objections thereto, the Court declines to accept the Report 101 at this time. The Court hereby directs the Plaintiff to file a response to t he Defendants Motion for Summary Judgment 87 within thirty (30) days of the date of this Order. If the Plaintiff fails to respond within the above allotted time, this case is to be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Proc edure and all pending motions are to be terminated as moot, as recommended by the Magistrate Judge. If the Plaintiff does timely respond, the Clerk of Court is to refer the Defendants Motion for Summary Judgment at Docket Entry 87 (as well as all other pending dispositive and non-dispositive motions) to the Magistrate Judge for handling on the merits. Signed by Honorable Terry L Wooten on 10/02/2012. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

Joseph Herron,
Plaintiff,
vs.
Horry County, South Carolina, et al.,
Defendants.
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Civil Action No. 4:11-1377-TLW-TER

ORDER
On June 6, 2011, the Plaintiff, Joseph Herron (“Plaintiff”), proceeding pro se, filed this
civil action alleging violation of 42 U.S.C. § 1983. (Docs. # 1 and # 2).
The matter now comes before this Court for review of the Report and Recommendation
(“the Report”) filed by Magistrate Judge Thomas E. Rogers, III, to whom this case had
previously been assigned. In the Report, the Magistrate Judge recommends that Plaintiff’s
complaint be dismissed for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of
Civil Procedure. (Doc. # 101). Objections were due by September 13, 2012. Plaintiff filed an
Objection on September 20, 2012, in which he seeks to excuse his failures to timely
communicate with the Court on the basis of an address change and change in the site of his
incarceration. (Doc. # 105). Plaintiff also petitions the Court for leave to amend his complaint,
or alternatively, for an additional twenty (20) days to respond to Defendants’ Motion for
Summary Judgment. (Docs. # 105 and # 106). In conducting its review, the Court applies the
following standard:
The magistrate judge makes only a recommendation to the Court, to which any party may
file written objections...The Court is not bound by the recommendation of the magistrate
judge but, instead, retains responsibility for the final determination. The Court is

required to make a de novo determination of those portions of the report or specified
findings or recommendation as to which an objection is made. However, the Court is not
required to review, under a de novo or any other standard, the factual or legal conclusions
of the magistrate judge as to those portions of the Report and Recommendation to which
no objections are addressed. While the level of scrutiny entailed by the Court's review of
the Report thus depends on whether or not objections have been filed, in either case, the
Court is free, after review, to accept, reject, or modify any of the magistrate judge's
findings or recommendations.
Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992)
(citations omitted).
In light of the standard set forth in Wallace, the Court has reviewed, de novo, the Report
and the objections. After careful review of the Report and objections thereto, the Court declines
to accept the Report at this time. (Doc. # 101). The Court hereby directs the Plaintiff to file a
response to the Defendants’ Motion for Summary Judgment within thirty (30) days of the date of
this Order. If the Plaintiff fails to respond within the above allotted time, this case is to be
dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and all pending
motions are to be terminated as moot, as recommended by the Magistrate Judge. If the Plaintiff
does timely respond, the Clerk of Court is to refer the Defendants’ Motion for Summary
Judgment at Docket Entry # 87 (as well as all other pending dispositive and non-dispositive
motions) to the Magistrate Judge for handling on the merits.
IT IS SO ORDERED.

____s/Terry L. Wooten____
United States District Judge

October 2, 2012
Florence, South Carolina