Harris v. US Parole Commission

Filing 33

ORDER RULING ON REPORT AND RECOMMENDATION: the court finds the Magistrate Judge's recommendation 29 proper and incorporates it herein by reference. Accordingly, this action is dismissed with prejudice for failure to prosecute under Fed.R.Civ.P. Rule 41(b) and all outstanding motions are deemed moot. Signed by Honorable Joseph F Anderson, Jr on 8/30/2013. (mcot, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Tony Harris,
Petitioner,
vs.
U.S. Parole Commission; Warden of
FCI-Edgefield,
Respondents.
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C/A No. 5:13-558-JFA-KDW

ORDER

The pro se petitioner, Tony Harris, brings this action pursuant to 28 U.S.C. § 2241
seeking to quash a detainer filed against him by the U.S. Parole Commission. The petitioner
is was incarcerated at the Federal Correctional Institution (FCI) in Edgefield, South Carolina.
The respondents filed a motion for summary judgment and an order was issued
pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) notifying petitioner of the
summary dismissal procedure and possible consequences if he failed to adequately respond
to the motion to dismiss. Petitioner did not respond to the motion.
The court then filed a second order on July 17, 2013, allowing the petitioner additional
time to respond to the motion and advise the court is he wished to continue this case. Again,
petitioner did not respond.
The Magistrate Judge assigned to this action1 has prepared a Report and

1

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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Recommendation wherein she suggests that this action should be dismissed for lack of
prosecution pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The Report sets
forth in detail the relevant facts and standards of law on this matter, and the court
incorporates such without a recitation.
The petitioner was advised of his right to file objections to the Report and
Recommendation which was entered on the docket on August 12, 2013, but no objections
were filed and the time to do so has expired. In the absence of specific objections to the
Report of the Magistrate Judge, this court is not required to give any explanation for adopting
the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
After a careful review of the record, the applicable law, and the Report and
Recommendation, the court finds the Magistrate Judge’s recommendation proper and
incorporates it herein by reference. Accordingly, this action is dismissed with prejudice for
failure to prosecute under Fed.R.Civ.P. Rule 41(b) and all outstanding motions are deemed
moot.
It is further ordered that a certificate of appealability is denied because the petitioner
has failed to make “a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2).2

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A certificate of appealability will not issue absent “a substantial showing of the denial of a
constitutional right.” 28 U .S.C. § 2253(c)(2) (West 2009). A prisoner satisfies this standard by
demonstrating that reasonable jurists would find both that his constitutional claims are debatable and that
any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell,
537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th
Cir.2001). In the instant matter, the court finds that the defendant has failed to make “a substantial showing
of the denial of a constitutional right.”

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IT IS SO ORDERED.

Joseph F. Anderson, Jr.
United States District Judge

August 30, 2013
Columbia, South Carolina

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