McCoy v. Cartledge

Filing 25

ORDER: It is ORDERED that McCoy's motion for enlargement of time, docket number 24 , is granted and McCoy is ordered to respond to the pending motion for summary judgment 15 within 20 days of this order. It is further ORDERED that the court declines to adopt the Report and Recommendation 22 and remands this matter to the magistrate judge for further consideration. Response to Motion is now due August 19, 2016. Signed by Honorable Henry M Herlong, Jr. on 07/28/2016.(dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Mark McCoy, #210705,
Petitioner,
vs.
Warden Cartledge,
Respondent.

)
)
)
)
)
)
)
)
)

C.A. No. 4:16-638-HMH-TER
OPINION & ORDER

This matter is before the court with the Report and Recommendation of United States
Magistrate Judge Thomas E. Rogers, III, made in accordance with 28 U.S.C. § 636(b) and Local
Civil Rule 73.02 of the District of South Carolina.1 Mark McCoy (“McCoy”) is a pro se state
prisoner seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. In his Report and
Recommendation, Magistrate Judge Rogers recommends dismissing McCoy’s petition for failure
to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
McCoy filed a motion for enlargement of time, arguing that he did not receive Magistrate
Judge Rogers’ June 9, 2016 order granting his motion for extension of time until July 11, 2016,
which was after the extended deadline of July 8, 2016. McCoy has provided a copy of the mail
delivery log, which supports his argument. Based on the foregoing, the court declines to adopt
the Report and Recommendation. McCoy is ordered to respond to the Respondent’s motion for

1

The recommendation has no presumptive weight, and the responsibility for making a
final determination remains with the United States District Court. See Mathews v. Weber, 423
U.S. 261, 270 (1976). The court is charged with making a de novo determination of those
portions of the Report and Recommendation to which specific objection is made. The court may
accept, reject, or modify, in whole or in part, the recommendation made by the magistrate judge
or recommit the matter with instructions. 28 U.S.C. § 636(b)(1) (2006).
1

summary judgment within 20 days of this order. Further, this matter is remanded to the
magistrate judge for further consideration.
It is therefore
ORDERED that McCoy’s motion for enlargement of time, docket number 24, is granted
and McCoy is ordered to respond to the pending motion for summary judgment within 20 days of
this order. It is further
ORDERED that the court declines to adopt the Report and Recommendation and
remands this matter to the magistrate judge for further consideration.
IT IS SO ORDERED.
s/Henry M. Herlong, Jr.
Senior United States District Judge
Greenville, South Carolina
July 28, 2016

NOTICE OF RIGHT TO APPEAL
The Petitioner is hereby notified that he has the right to appeal this order within thirty
(30) days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate
Procedure.

2