Henry v. McCall et al
Filing
42
ORDER RULING ON REPORT AND RECOMMENDATION. The court finds the Magistrate Judge's recommendation 38 to be proper. Accordingly, the Report and Recommendation is incorporated herein by reference and this action is DISMISSED with prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Signed by Honorable Mary G Lewis on 12/7/2012. (mcot, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
John Henry,
) Civil Action No.: 4:12-916-MGL
)
Plaintiff, )
)
v.
)
ORDER
)
Michael McCall, Warden;
)
Stephen Claytor, Associate Warder; and
)
Dennis Bush, Mayor,
)
)
Defendants. )
_________________________________ )
Plaintiff John Henry (“Plaintiff”), proceeding pro se, filed this action pursuant to 42
U.S.C. § 1983 on April 4, 2012, alleging violations of his constitutional rights. (ECF No. 1.)
Plaintiff is incarcerated at the Perry Correctional Center. This matter is now before the court
upon the Magistrate Judge's Report and Recommendation filed on November 6, 2012,
recommending this case be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure on the grounds that Plaintiff failed to prosecute the case. (ECF No. 38.) More
specifically, Plaintiff has failed to comply with this Court’s Orders of August 10, 2012, (ECF
No. 29) and August 28, 2012, (ECF No. 33) directing Plaintiff to respond to Defendants’
Motion for Summary Judgment filed on August 10, 2012. (ECF No. 28.)
In accordance
with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred to United
States Magistrate Judge Thomas E. Rogers, III, for pretrial handling. The Magistrate Judge
makes only a recommendation to this court. The recommendation has no presumptive
weight. The responsibility for making a final determination remains with this court.
Mathews v. Weber, 423 U.S. 261, 270, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The court
may accept, reject, or modify, in whole or in part, the Report and Recommendation or may
recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). The
court is charged with making a de novo determination of those portions of the Report and
Recommendation to which specific objections are made. Plaintiff was advised of his right
to file objections to the Report and Recommendation. (ECF No. 38-1.) However, he has
not done so and objections were due on November 6, 2012. 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 & Acc. Ins. Co., 416 F.3d 310, 315 (4th
Cir.2005).
After a careful review of the record, the applicable law, and the Report and
Recommendation, the court finds the Magistrate Judge's recommendation to be proper.
Accordingly, the Report and Recommendation is incorporated herein by reference and this
action is DISMISSED with prejudice pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure.
IT IS SO ORDERED.
/s/Mary G. Lewis
United States District Judge
Spartanburg, South Carolina
December 7, 2012
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