Mack v. Pate

Filing 34

ORDER RULING ON REPORT AND RECOMMENDATION. The court adopts the Report(ECF No. 30 ) and incorporates it herein. It appears the petitioner no longer wishes to prosecute this action. It is therefore ORDERED that the action is D ISMISSED with prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). It is further ORDERED that the respondents motion for summary judgment (ECF No. 25 ) is TERMINATED as moot. The court declines to issue a certificate of appealability. Signed by Honorable Timothy M Cain on 05/10/2013. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Tevel Mack,
Petitioner,
v.
John Pate,
Respondent.

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C/A No. 4:12-2834-TMC
ORDER

The petitioner, a state prisoner proceeding pro se, filed this habeas petition
pursuant to 28 U.S.C. § 2254. This matter is before the court for review of the Report
and Recommendation of United States Magistrate Judge Thomas E. Rogers, III, made
in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of
South Carolina (“Report”).
The magistrate judge makes only a recommendation to this court.

That

recommendation has no presumptive weight and 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 portions of
the Report to which the parties specifically object, 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).
On March 6, 2013, the respondent moved for summary judgment. (ECF No. 25.)
The court advised the petitioner of his right to respond to the respondent’s motion on
March 7, 2013, and specifically advised him that if he failed to respond, this action
would be dismissed for failure to prosecute. (ECF No. 26.) The petitioner still failed to
respond.
Accordingly, the magistrate judge filed the Report, recommending that the court

dismiss this action with prejudice pursuant to Federal Rule of Civil Procedure 41(b) for
failure to prosecute. (ECF No. 30.) The court advised the petitioner of his right to file
objections to the Report. (ECF No. 30-1.) However, the petitioner did not file objections.
In the absence of objections to the Report, this court is not required to provide an
explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199
(4th Cir. 1983). Rather, “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) (quoting Fed. R. Civ. P.
72 advisory committee’s note).
Certificate of Appealability
A certificate of appealability will not issue absent “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A prisoner satisfies this standard
by demonstrating that reasonable jurists would find both that his constitutional claims
are debatable and that any dispositive procedural rulings by the district court are also
debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Rose v. Lee,
252 F.3d 676, 683 (4th Cir. 2001). In the instant matter, the court finds that Petitioner
has failed to make “a substantial showing of the denial of a constitutional right.”
Accordingly,

the

court

declines

to

issue

a

certificate

of

appealability.

After a thorough review of the record in this case, the court adopts the Report
(ECF No. 30) and incorporates it herein. It appears the petitioner no longer wishes to
prosecute this action. It is therefore ORDERED that the action is DISMISSED with
prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) and
the factors outlined in Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir.
1982). See Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989). It is further ORDERED that

the respondent’s motion for summary judgment (ECF No. 25) is TERMINATED as
moot.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
May 10, 2013