Davis v. Elemo et al

Filing 56

ORDER RULING ON REPORT AND RECOMMENDATION: The Court adopts the Report 53 and incorporates it herein. Therefore, it is the judgment of this Court the case is DISMISSED WITH PREJUDICE pursuant to Fed. R. Civ. P. 41(b).IT IS SO ORDERED. Signed by Honorable Mary Geiger Lewis on 08/10/2017. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
ERIC DAVIS,
Plaintiff,
vs.
THOMAS ELEMO,
Defendant.

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CIVIL ACTION NO. 4:16-02791-MGL

ORDER ADOPTING THE REPORT AND RECOMMENDATION AND
DISMISSING THE CASE WITH PREJUDICE PURSUANT TO FED. R. CIV. P. 41(b)
This case was filed as a 42 U.S.C. ' 1983 action. Plaintiff is proceeding pro se. The
matter is before the Court for review of the Report and Recommendation (Report) of the United
States Magistrate Judge suggesting the case be dismissed with prejudice for failure to prosecute
pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The Report was made in
accordance with 28 U.S.C. ' 636 and Local Civil Rule 73.02 for the District of South Carolina.
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight. The responsibility to make a final determination remains with the
Court. 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 to which specific objection is made, and the
Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate
Judge or recommit the matter with instructions. 28 U.S.C. ' 636(b)(1).
The Magistrate Judge filed the Report on July 27, 2017, but Plaintiff failed to file any
objections to the Report. “[I]n 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).
Moreover, a failure to object waives appellate review. Wright v. Collins, 766 F.2d 841, 845-46
(4th Cir. 1985).
After a thorough review of the Report and the record in this case pursuant to the standard
set forth above, the Court adopts the Report and incorporates it herein. Therefore, it is the
judgment of this Court the case is DISMISSED WITH PREJUDICE pursuant to Fed. R. Civ. P.
41(b).
IT IS SO ORDERED.
Signed this 10th day of August, 2017, in Columbia, South Carolina.
s/ Mary Geiger Lewis
MARY GEIGER LEWIS
UNITED STATES DISTRICT JUDGE

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NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this Order within thirty days from the
date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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