Robinson v. Fuller et al

Filing 55

ORDER RULING ON REPORT AND RECOMMENDATION. The court adopts the Magistrate Judge's Report and Recommendation (ECF No. 50 ) and incorporates it herein. Accordingly, Defendants' Motion to Dismiss (ECF No. 44 ) is GRANTED, and this action DISMISSED with prejudice for failure to prosecute. Further, Defendant's Motion for Summary Judgment (ECF No. 40 ) is DENIED as moot. Signed by Magistrate Judge Kaymani D West on 4/23/2013. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Chris Robinson,
Plaintiff,
v.
Stephen Fuller, Chuck Lister,
Steve Adwell, Steve Greene,
Peter Schafer, and Pete Meffert,
Defendants.
______________________________

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C.A. No. 5:12-2623-TMC
ORDER

Plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed this action
pursuant to 42 U.S.C. § 1983. This matter is before the court for review of the Report and
Recommendation of the United States Magistrate Judge Kaymani D. West made in
accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 (D.S.C.).
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.

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 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 court may accept, reject, or modify, in whole or in
part, the Magistrate Judge’s recommendation or recommit the matter with instructions. See
28 U.S.C. § 636(b)(1).
In her Report and Recommendation, the magistrate judge recommended this action
be dismissed for lack of prosecution and advised Plaintiff of his right to file objections. (ECF
No. 50-1). However, Plaintiff filed no objections and the time for doing so has now run. In
fact, the Report and Recommendation which was mailed to Plaintiff’s last known address
was returned to the court marked undeliverable. Plaintiff was advised by Order filed
November 7, 2012, of his responsibility to notify the court in writing if his address changed,

and that his case could be dismissed for failing to comply with the court's Order. (ECF No.
17). Based on the foregoing, it appears Plaintiff no longer wishes to pursue this action.
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 & Acc. 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)(1); Thomas v. Arn, 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).
After a thorough review of the Report and Recommendation and the record in this
case, the court adopts the Magistrate Judge’s Report and Recommendation (ECF No. 50)
and incorporates it herein. Accordingly, Defendants’ Motion to Dismiss (ECF No. 44) is
GRANTED, and this action is DISMISSED with prejudice for failure to prosecute. Further,
Defendant’s Motion for Summary Judgment (ECF No. 40) is DENIED as moot.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
April 23, 2013

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.