Wright v. Stirling
ORDER RULING ON REPORT AND RECOMMENDATION: After a careful and thorough review of the record under the appropriate standards, as set forth above, the court adopts the magistrate judge's Report (ECF No. 59 ), which is incorporated herein by reference. Accordingly, this case is DISMISSED with prejudice pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute. Signed by Honorable Timothy M Cain on 10/10/2018. (prou, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Timothy L. Wright,
Director Bryan Stirling,
Civil Action No. 5:18-cv-00386-TMC
Plaintiff, proceeding pro se and in forma pauperis, brought this action seeking relief
pursuant to Title 42, United States Code Section 1983. In accordance with 28 U.S.C. § 636(b)(1)
and Local Civil Rule 73.02, D.S.C., this matter was referred to a magistrate judge for pretrial
handling. Before the court is the magistrate judge’s Report and Recommendation (“Report”),
recommending that this action be dismissed with prejudice. (ECF No. 59). Plaintiff was advised
of his right to file objections to the Report. Id. at 4. However, Plaintiff filed no objections to the
Report, and the time to do so has now run.
The Report has no presumptive weight and the responsibility to make a final
determination in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 270–
71 (1976). In the absence of objections, this court is not required to provide an explanation for
adopting the Report. 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 & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
After a careful and thorough review of the record under the appropriate standards, as set
forth above, the court adopts the magistrate judge’s Report (ECF No. 59), which is incorporated
herein by reference. Accordingly, this case is DISMISSED with prejudice pursuant to Federal
Rule of Civil Procedure 41(b) for failure to prosecute.1
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
October 10, 2018
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.
The court notes that Defendant initially filed a Motion to Dismiss for failure to state a claim on April 6, 2018, but
withdrew this motion after Plaintiff amended his Complaint. (ECF Nos. 15, 25, 38). Defendant filed a subsequent
Motion to Dismiss for failure to state a claim as to the Amended Complaint on May 21, 2018. (ECF No. 32). Having
heard no response from Plaintiff as to the pending motion, the magistrate judge issued an order on July 12, 2018,
warning Plaintiff that failure to respond to the Motion to Dismiss would result in the magistrate judge
recommending dismissal with prejudice for failure to prosecute. (ECF No. 42). Plaintiff subsequently alerted the
court that he had not received the Motion to Dismiss, so, out of an abundance of caution, the Clerk’s office mailed
Plaintiff another copy, and the magistrate judge ordered Plaintiff to respond by August 30, 2018. (ECF Nos. 47, 48,
49). In a second Roseboro Order, the magistrate judge again warned Plaintiff that failure to respond to the Motion to
Dismiss may result in dismissal of his claims. (ECF No. 48). The court notes that Plaintiff did file a Motion to
Amend his Complaint, for the second time, on August 3, 2018, (ECF No. 51), but the magistrate judge denied this
motion for multiple reasons, including that such amendment was futile. (ECF No. 56). In that Order, the magistrate
judge specifically stated that the case had “progressed to the stage at which Plaintiff should respond to the pending
Motion to Dismiss.” (ECF NO. 56 at 3-4). However, to date, the court has not received a response from Plaintiff
regarding the Motion to Dismiss. Additionally, Plaintiff filed no objections to the magistrate judge’s Report. As
such, the court finds dismissal with prejudice to be appropriate because Plaintiff has ignored court orders despite
having been specifically warned of the consequences of not complying.
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