McFadden v. Major et al

Filing 38

ORDER RULING ON REPORT AND RECOMMENDATION: This court therefore ADOPTS the Magistrate Judge's Report and Recommendation (ECF No. 31 ). It is therefore ORDERED that Petitioner's action (ECF No. 1 ) be DISMISSED with prejudice for failure to prosecute. Signed by Honorable J Michelle Childs on 10/15/2015. (dsto, ) (Main Document 38 replaced on 10/16/2015) (asni, ). Modified to correct scriveners error on 10/16/2015 (asni, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Davon T. McFadden,

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Plaintiff,
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v.
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Simon Major, Daryl F. McGhaney,
)
Lt McMillian,
)
)
Defendants.
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____________________________________)

Civil Action No. 4:15-cv-00274-JMC

ORDER

Petitioner, proceeding pro se, brought this action seeking relief pursuant to 42 U.S.C. §
1983.

This matter is before the court for review of the Magistrate Judge's Report and

Recommendation (“Report”) (ECF No. 31), filed on July 2, 2015, recommending that
Defendants’ motion to dismiss (ECF No. 22) be granted and Plaintiff’s action be dismissed with
prejudice for failure to prosecute.
The Magistrate Judge’s Report 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, which 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 portions of the
Report 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).
The Magistrate Judge entered an order in this case on May 20, 2015, pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the importance of

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him filing an adequate response to Defendants’ Motion to Dismiss (ECF No. 22) and of the need
for him to file an adequate response. (ECF No. 24.) Petitioner still failed to respond to
Defendants’ Motion to Dismiss. The Roseboro order was returned to the Clerk of Court’s office
via the United States Postal Service on June 4, 2015 and was marked “Return to Sender” and
“Inmate released.” (ECF No. 27.)
The Magistrate Judge thus dismissed petitioner’s action pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure. (ECF No. 31 at 2 (considering “(1) the degree of plaintiff's
responsibility in failing to respond; (2) the amount of prejudice to the defendant; (3) the history
of the plaintiff in proceeding in a dilatory manner; and, (4) the existence of less drastic sanctions
other than dismissal,” as instructed by Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978)).)
Noting that Petitioner was proceeding pro se, the Magistrate Judge stated:
It is solely through Plaintiff’s neglect, and not that of an attorney, that no
responses have been filed to this motion for summary judgment. Plaintiff has not
responded to Defendants’ motion to dismiss for failure to prosecute or the court's
order requiring him to respond. The mail was returned as undeliverable noting
that Plaintiff had been released [from prison]. (Doc. #27). The undersigned
concludes the Plaintiff has abandoned this lawsuit. It appears there are no less
drastic sanctions available.
(Id. at 2.)
Upon review of the Report and the record in this case, the court agrees with the
Magistrate Judge’s conclusion in this regard. This court therefore ADOPTS the Magistrate
Judge’s Report and Recommendation (ECF No. 31). It is therefore ORDERED that Petitioner’s
action (ECF No. 1) be DISMISSED with prejudice for failure to prosecute.

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IT IS SO ORDERED.

United States District Judge
October 15, 2015
Columbia, South Carolina

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