Simmons v. SCDC

Filing 143

ORDER ADOPTING Report and Recommendations 138 , GRANTING 133 Motion to Dismiss for Lack of Prosecution. Signed by Honorable G Ross Anderson, Jr on 2/12/2010.(mbro, )

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA GREENVILLE DIVISION ) Carlos R. Simmons, #211859, ) ) Plaintiff, ) ) v. ) ) Director Jon Ozmint, et al., ) ) Defendants. ) _______________________________________)

C/A No.: 6:08-400-GRA

ORDER (Written Opinion)

This matter comes before the Court for review of Magistrate Judge William M. Catoe's Report and Recommendation made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(d), D.S.C., and filed on January 29, 2010. Plaintiff filed this action on February 7, 2008, pursuant to 42 U.S.C. § 1983. Under established local procedure in this judicial district, Magistrate Judge Catoe made a careful review of the pro se complaint pursuant to the procedural provisions of 28 U.S.C. § 1915, 28 U.S.C. § 1915A, and the Prison Litigation Reform Act. Magistrate Judge Catoe recommends that this Court dismiss this case for lack of prosecution. This Court adopts the magistrate's recommendation in its entirety. Plaintiff brings this claim pro se. This Court is required to construe pro se pleadings liberally. Such pleadings are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). This Court is charged with liberally construing a pleading filed by a pro se litigant to allow

1 of 3

for the development of a potentially meritorious claim. Boag v. MacDougall, 454 U.S. 364, 365 (1982). The magistrate makes only a recommendation to this Court. The

recommendation has no presumptive weight, and the responsibility to make a final determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made, and this Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). This Court may also "receive further evidence or recommit the matter to the magistrate with instructions." Id. In the absence of specific objections to the Report and Recommendation, this Court is not required to give any explanation for adopting the recommendation. Camby v. Davis, 718 F.2d 198 (4th. Cir. 1983). Plaintiff has filed no objections. After a review of the record, this Court finds that the magistrate's Report and Recommendation accurately summarizes this case and the applicable law. Accordingly, the Report and Recommendation is accepted and adopted in its entirety.

IT IS THEREFORE ORDERED that Defendants' Motion to Dismiss is GRANTED, and this action is DISMISSED for Plaintiff's failure to prosecute. IT IS SO ORDERED.

[Signature block on next page.] 2 of 3

February 12 , 2010 Anderson, South Carolina

NOTICE OF RIGHT TO APPEAL Plaintiff has the right to appeal this Order within thirty (30) days from the date of the entry of this Order, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure. Failure to meet this deadline, as modified by Rule 4 of the Federal Rules of Appellate Procedure, will waive the right to appeal.

3 of 3