Smalls v. Warden of Lieber Correctional Institution

Filing 31

ORDER and OPINION RULING ON REPORT AND RECOMMENDATION: The Court ADOPTS the R & R as the Order of the Court and Dismisses the petition. A certificate of appealability is DENIED. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 1/17/23. (ltap, )

5:22-cv-02060-RMG

Date Filed 01/17/23

Entry Number 31

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Benjamin Smalls,
v.

Case No. 5:22-cv-02060-RMG

Petitioner,
ORDER AND OPINION

Warden of Lieber Correctional Institution,
Respondent

This matter is before the Court on the Report and Recommendation (“R & R”) of the
Magistrate Judge recommending that the Court dismiss this action with prejudice for failure to
prosecute. (Dkt. No. 29). For the reasons set forth below, the Court adopts the R & R as the order
of the Court.
I.

Background
Petitioner, proceeding pro se, filed a Petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. On September 26, 2022, Respondent filed a Return and Motion for Summary
Judgment. (Dkt. Nos. 20, 21). The Court entered an order pursuant to Roseboro v. Garrison, 528
F.2d 309 (4th Cir. 1975), advising Petitioner of the importance of such motions and of the need
for him to file adequate responses. (Dkt. No. 22). Petitioner was specifically advised that if he
failed to respond adequately, Respondent’s motion may be granted, thereby ending this case.
Petitioner still failed to respond to Respondent’s motion.
The Court later directed Petitioner to advise the court whether he wished to continue his
case and further advised that if he failed to respond to the Court’s order this action would be
recommended for dismissal with prejudice for failure to prosecute. (Dkt. No. 25). Petitioner did
not file a response.

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The Magistrate Judge issued an R & R recommending that the Court dismiss this action
with prejudice for failure to prosecute. The matter is now ripe for the Court’s review.
II.

Standard
The Magistrate Judge makes only a recommendation to this Court that has no presumptive
weight. The responsibility to make a final determination remains with the Court. See Mathews v.
Weber, 423 U.S. 261, 270–71 (1976). The Court may “accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). This
Court must make a de novo determination of those portions of the R & R Plaintiff specifically
objects. Fed. R. Civ. P. 72(b)(2). Where Plaintiff fails to file any specific objections, “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) (internal quotation omitted). “Moreover,
in the absence of specific objections to the R & R, the Court need not give any explanation for
adopting the recommendation.” Wilson v. S.C. Dept of Corr., No. 9:14-CV-4365-RMG, 2015 WL
1124701, at *1 (D.S.C. Mar. 12, 2015). See also Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983).
Plaintiff has not filed objections in this case and the R & R is reviewed for clear error.

III.

Discussion
An action may be dismissed pursuant to Rule 41 of the Federal Rule of Civil Procedure for

failure to prosecute or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93,
95 (4th Cir. 1989). In considering whether to dismiss an action pursuant to Rule 41(B), the court
is required to consider four factors; “(1) the degree of personal responsibility on the part of the
plaintiff; (2) the amount of prejudice to the defendant caused by the delay; (3) the history of the
plaintiff in proceeding in a dilatory manner; and (4) the existence of less drastic sanctions other
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than dismissal.” Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978) (internal quotation marks
omitted). Here, Petitioner, proceeding pro se, is entirely responsible for his failure to respond to
Respondent’s motion for summary judgment or the Court’s orders requiring him to respond. The
motion for summary judgment has been pending for over three months with no response from
Petitioner. No reasonable sanctions other than dismissal are available to the Court. Indeed, when
the Magistrate Judge finally recommended dismissal of the petition as a sanction, Petitioner
offered no objection. Accordingly, Petitioner has abandoned his petition for habeas relief.
IV.

Certificate of Appealability
The governing law provides that:
(c)(2) A certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.
(c)(3) The certificate of appealability . . . shall indicate which specific issues satisfy
the showing required by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies the standard by demonstrating that reasonable

jurists would find the Court’s assessment of his constitutional claims debatable or wrong and that
any dispositive procedural ruling by the district court is likewise debatable. 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.2d 676, 683 (4th Cir. 2001). In this case, the legal standard for the issuance of a certificate
of appealability has not been met. Therefore, a certificate of appealability is DENIED.
V.

Conclusion
For the foregoing reasons, the Court ADOPTS the R & R as the Order of the Court and

Dismisses the petition.
AND IT IS SO ORDERED.
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_s/ Richard Mark Gergel
Richard Mark Gergel
United States District Judge
January 17, 2023
Charleston, South Carolina

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