Glover v. Stephenson

Filing 17

ORDER RULING ON REPORT AND RECOMMENDATIONS adopting 13 Report and Recommendations, dismissing the case without prejudice and without issuance and service of process for failure to prosecute under Rule 41(b). Signed by Honorable Joseph F Anderson, Jr on 09/09/08. (bshr, )

U N I T E D STATES DISTRICT COURT D IS T R IC T OF SOUTH CAROLINA T re s s a R. Glover, Appellant, vs. W illia m K. Stephenson, Jr., A p p e lle e . ___________________________ _ _ _ _ _ _ _ _ _ __ __ ) C/A No. 5:08-2399-JFA-BM ) ) Bankruptcy No. 08-1058-JW ) ) ORDER ) ) ) ) )

T h e pro se appellant, Tressa R. Glover, brings this action as an appeal to the B a n k ru p tc y Court's decision denying her relief under Chapter 13 of the United States B a n k ru p tc y Code. Under the court's initial order in this case, appellant was directed to pay th e filing fee or submit appropriate documents to apply to proceed in forma pauperis.1 T h e Magistrate Judge assigned to this action 2 has prepared a Report and R e c o m m e n d a tio n wherein he suggests that this court should dismiss the action due to a p p e llan t's failure to comply with this court's order and for lack of prosecution pursuant to R u le 41(b) of the Federal Rules of Civil Procedure. The Report sets forth in detail the

The Magistrate Judge notes that the initial order directing payment of the filing fee was not returned as undeliverable. The Magistrate Judge's review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02. The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. Mathews v. Weber, 423 U.S. 261 (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 to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
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re le v a n t facts and standards of law on this matter, and the court incorporates such without a recitation. The appellant was advised of her right to file objections to the Report and R e c o m m e n d a tio n which was entered on the docket on August 18, 2008. However, the a p p e lla n t did not file any objections 3 to the Report within the time limits prescribed. A p p lyin g the four-factor test of Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978) to this action, the Magistrate Judge suggests that appellant's failure to comply with the initial o rd e r in this case indicates appellant's intent not to prosecute this case. A f te r a careful review of the record, the applicable law, and the Report and R e c o m m e n d a t io n , the court finds the Magistrate Judge's recommendation proper and in c o rp o rated herein by reference. Accordingly, this action is dismissed without prejudice and w ith o u t issuance and service of process for failure to prosecute under Rule 41(b). IT IS SO ORDERED.

S e p te m b e r 9, 2008 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

Under 28 U.S.C. § 636(b)(1), the district court is obligated to conduct a de novo review of every portion of the Magistrate Judge's Report to which objections have been filed. The court reviews the Report only for clear error in the absence of an objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to timely file specific written objections to the Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985).

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