Kiker v. Lancaster County et al

Filing 75

ORDER RULING ON REPORT AND RECOMMENDATION: This action is dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute. Defendants' motion for summary judgment 58 is FOUND as MOOT. Signed by Honorable Donald C Coggins, Jr on 10/8/2019. (prou, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Junior Kiker,

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Plaintiff,
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v.
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Lancaster County, Barry Faile, Quintin )
Smith, Richard Plyler,
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Defendants.
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________________________________ )

Case No. 5:17-cv-02884-DCC

ORDER

This matter is before the Court upon Plaintiff’s complaint alleging violations of his
civil rights pursuant to 42 U.S.C. § 1983. ECF No. 1. In accordance with 28 U.S.C.
§ 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), this matter was referred to United
States Magistrate Judge Kaymani D. West for pre-trial proceedings and a Report and
Recommendation (“Report”). Defendants filed a motion for summary judgment on April
22, 2019. ECF No. 58. On April 23, 2019, this Court issued an Order pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), advising Plaintiff of the summary
judgment/dismissal procedure and the possible consequences if he failed to respond
adequately. ECF No. 59. Despite the explanation of the summary judgment/dismissal
procedure and the possible consequences for failing to respond, Plaintiff did not respond.
On August 13, 2019, the Magistrate Judge directed Plaintiff to inform the Court whether
he wished to continue with the case and to response to the motion by August 27, 2019.
ECF No. 67. The Magistrate Judge again warned Plaintiff that failing to respond could

subject his case dismissal. Plaintiff has not filed any document in response to the motion
or indicating that he intends to proceed with this case to date.
On September 4, 2019, the Magistrate Judge issued a Report recommending that
this case be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to
prosecute. ECF No. 71. 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 did not file objections to the Report, and the time to do so has lapsed.
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 will review 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 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)).
As stated above, Plaintiff has not objected to the Magistrate Judge's Report.
Accordingly, after considering the record in this case, the applicable law, and the Report
of the Magistrate Judge, the Court finds no clear error and agrees with the

recommendation of the Magistrate Judge.

This action is dismissed with prejudice

pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute.1
IT IS SO ORDERED.
s/ Donald C. Coggins, Jr.
United States District Judge
October 8, 2019
Spartanburg, South Carolina

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.

1

Defendants’ motion for summary judgment [58] is FOUND as MOOT.