Herrera v. Drew et al
ORDER RULING ON REPORT AND RECOMMENDATION. The court agrees with the conclusion of the Report 39 that this matter should be dismissed with prejudice for failure to prosecute pursuant to Rule 41(b). Signed by Honorable Cameron McGowan Currie on 11/28/2012. (mcot, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Daniel Herrera, #89473-198,
Warden Darlene Drew; SIS, Lt. Brawley; )
Captain Gerald DelRey; Lt. Miller;
Lt. Edwards; Lt. Jones; M.D. Berrios;
R.N. Borck; HSA McDannold,
C/A NO. 5:12-1002-CMC-KDW
OPINION and ORDER
This matter is before the court on Plaintiff’s pro se complaint, filed in this court pursuant to
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(d), DSC, this
matter was referred to United States Magistrate Judge Kaymani D. West for pre-trial proceedings
and a Report and Recommendation (“Report”). On October 30, 2012, the Magistrate Judge issued
a Report recommending that this matter be dismissed with prejudice due to Plaintiff’s failure to
prosecute this action. The Magistrate Judge advised Plaintiff of the procedures and requirements
for filing objections to the Report and the serious consequences if he failed to do so. Plaintiff has
filed no objections and the time for doing so has expired.
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.
See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of any portion of the Report of the Magistrate Judge to which a 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 to the Magistrate Judge with instructions. See 28
U.S.C. § 636(b). 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) (stating that
“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.”) (citation omitted).
After reviewing the record of this matter, the applicable law, and the Report and
Recommendation of the Magistrate Judge, the court agrees with the conclusion of the Report that
this matter should be dismissed with prejudice for failure to prosecute pursuant to Rule 41(b).
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE
Columbia, South Carolina
November 28, 2012
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