Gilmore v. Frasier et al

Filing 164

ORDER RULING ON REPORT AND RECOMMENDATION: The court adopts the Report by reference in this Order. Plaintiff's complaint is hereby dismissed pursuant to Fed. R. Civ. P. 41(b). Signed by Honorable Cameron McGowan Currie on 5/29/2019. (prou, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Perry Drake Gilmore,

Civil Action No. 5:18-cv-202-CMC
Plaintiff,

vs.

ORDER

Lieutenant Grealin Frasier; Lieutenant Jones;
Silva; Gilyard; Jenkins; Miller; Stirling;
Jeanette Atchley; Tommy Robinson;
Corporal Grant; Sergeant Hamilton; and
Virginia Robinson,
Defendants.
This matter is before the court on Plaintiff’s Complaint filed January 25, 2018. 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”) on dispositive issues.
On April 23, 2019, the Magistrate Judge issued a Report recommending certain Defendants
be dismissed without prejudice pursuant to Fed. R. Civ. P. 41. ECF No. 157. 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. The Report was sent to the address identified by
Plaintiff in his change of address notice dated January 30, 2019. ECF No. 140. On May 3, 2019,
the mail was returned as undeliverable. ECF No. 161. The Magistrate Judge then entered another
Report on May 6, 2019, recommending the action be dismissed in accordance with Rule 41(b), but
noting if “Plaintiff notifies the court within the time set for filing objections to this Report and
Recommendation that he wishes to continue with this case and provides a current address, the

Clerk is directed to vacate this Report and Recommendation and return the file to the undersigned
for further handling.” ECF No. 162. Although the copy of the Report mailed to Plaintiff has not
been returned to the court, Plaintiff has not filed objections and the time for doing so has passed.
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).

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After a review of the record, the applicable law, and the Report and Recommendation of
the Magistrate Judge, the court finds no clear error and agrees with the Report’s recommendation
the Complaint should be dismissed. Accordingly, the court adopts the Report by reference in this
Order. Plaintiff’s complaint is hereby dismissed pursuant to Fed. R. Civ. P. 41(b). See also
Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (“The Federal Rules of Civil Procedure
recognize that courts must have the authority to control litigation before them, and this authority
includes the power to order dismissal of an action for failure to comply with court orders.”).
IT IS SO ORDERED.
s/Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
May 29, 2019

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