Corey v. Cartedge et al

Filing 60

ORDER RULING ON 56 REPORT AND RECOMMENDATIONS: This action is DISMISSED with prejudice for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and the factors outlined in Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir.1982). Signed by Honorable Timothy M Cain on 03/16/2012. (sste )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

. ORANGEBURG DIVISIION

Tim Corey,

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c.A. No. 5:11-1078-TMC

)

Plaintiff,

.)
)

v.

ORDER

)

)
Michael Labbshire; Rob Peele; J. Franklin; )
Ms Young; Ms Bell; Ms Moss; Marcia
)
Fuller,
)
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Defendants.
)

This matter is before the court on the Magistrate Judge's Report and Recommendation
(Dkt. # 56). The Plaintiff, proceeding pro se and in forma pauperis, filed this action alleging
violations of his constitutional rights pursuant to 42 U,S.C. § 1983. The Magistrate Judge's
Report and Recommendation, filed on February 24, 2012, recommends that this action be
dismissed with prejudice for failure to prosecute.

(Dkt. # 56).

The Report and

Recommendation sets forth in detail the relevant facts and legal standards on this matter, and the
court incorporates the Magistrate Judge's recommendation herein without a recitation.
The Magistrate Judge's Report and Recommendation is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina.
Magistrate Judge makes only a recommendation to this court.

The

The recommendation 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 and Recommendation to which specific
objections are made, and the couri may accept, reject, ot modify, in whole or in part, the

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Magistrate Judge's recommendation or recommit the matter with instructions. See 28 U.S.C. §
636(b)(I).
In the absence of objections to the Magistrate Judge's Report and Recommendation, 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 & Ace. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72
advisory committee's note). Furthermore, failure to file specific written objections to the Report
and Recommendation results in a party's waiver of the right to appeal from the judgment of the
District Court based upon such recommendation. 28 U.S.C. § 636(b)(l); Thomas v. Am, 474
U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727
F.2d 91 (4th Cir. 1984).
The Defendants filed a Motion for Summary Judgment on December 21, 2011. (Dkt. #
42). The record reveals that, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4 th Cir. 1975), by
order dated December 22, 2011, the Plaintiff was advised of the importance of a Motion for
Summary Judgment and of the need for him to file an adequate response. (Dkt. # 43). Plaintiff
was specifically advised that if he failed to respond adequately, the Defendants' Motion might be
granted, thereby ending this case. As Plaintiff is proceeding pro se, the court ordered Plaintiff to
advise whether he wished to continue with the case by February 21, 2012.

(Dkt.· # 52).

Plaintiff has filed no response. The Magistrate Judge then filed a Report and Recommendation
recommending that this action be dismissed for failure to prosecute. Plaintiff was advised of his
right to file objections to the Report and Recommendation (Dkt. #
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56~1).

However, Plaintiff

filed no objections to the Report and Recommendation. Based on the foregoing, it appears the
Plaintiff no longer wishes to pursue this action.
Accordingly, this action is DISMISSED with prejudice for failure to prosecute pursuant
to Rule 41(b) of the Federal Rules of Civil Procedure and the factors outlined in Chandler
Leasing Corp. v. Lopez, 669 F.2d 919,920 (4th Cir.1982).

IT IS SO ORDERED.

s/Timothy M. Cain
United States District Judge
Greenville, South Carolina
March 16,2012

NOTICE OF RIGHT TO APPEAL

The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and 4
of the Federal Rules of Appellate Procedure.

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