Hernandez-Martinez v. FCI Bennettsville et al

Filing 64

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 59 Report and Recommendations that the within action is dismissed with prejudice pursuant to Rule 41(b). Signed by Honorable Margaret B Seymour on 1-20-10. (kmca)

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA U lys s e s Hernandez-Martinez, ) ) C/A No. 6:09-0936-MBS Plaintiff, ) ) v s. ) ) ORDER U n ite d States of America, ) ) D e fe n d a n t . ) ____________________________________) A t the time of the underlying complaint, Plaintiff Ulysses Hernandez-Martinez was an inmate in custody of the Federal Bureau of Prisons who was housed at FCI-Bennettsville in Bennettsville, S o u t h Carolina. Plaintiff, proceeding pro se, alleges that he was denied adequate medical care in v io la tio n of his constitutional rights. Thus, this action is brought pursuant to Bivens v. Six Unknown N a m e d Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., the within action was re fe rre d to United States Magistrate Judge William M. Catoe for pretrial handling. On August 24, 2 0 0 9 , Plaintiff filed a "Motion to Leave This Case Open." In the motion, Plaintiff informed the court th a t he was due to be released from incarceration on September 1, 2009, and upon his release he was s c h e d u le d to be deported. On November 4, 2009, the Magistrate Judge issued an order granting P la in tiff sixty days to provide the court with a permanent address. On November 5, 2009, a copy of th e order was sent to Plaintiff at FCI-Bennettsville, as well as to Stewart Detention Center, Post O ffic e Box 248, Lumpkin, Georgia 31815. On November 16, 2009, both envelopes containing P l a i n t i ff' s copies of the Magistrate Judge's order was returned to the Office of the Clerk of Court m a rk e d "RETURN TO SENDER - NOT DELIVERABLE AS ADDRESSED - UNABLE TO F O R W A R D - INDIVIDUAL NO LONGER IN CUSTODY" (FCI-Bennettsville) and "NOT AT THIS F A C ILIT Y " (Stewart Detention Center).

O n January 5, 2010, the Magistrate Judge issued a Report of Magistrate Judge in which he re c o m m e n d e d that the complaint be dismissed with prejudice for failure to prosecute. See Fed. R. C iv . P. 41(b). The envelope containing Plaintiff's copy of the Report of Magistrate Judge was re tu rn e d to the Clerk of Court from FCI-Bennettsville on January 14, 2010, marked "RETURN TO S E N D E R - NO LONGER AT THIS ADDRESS." The Magistrate Judge makes only a recommendation to this court. The recommendation has n o presumptive weight. The responsibility for making a final determination remains with this court. M a th e w s v. Weber, 423 U.S. 261, 270 (1976). The court is charged with making a de novo d e t e r m i n a t io n of any portions of the Report of Magistrate Judge to which a specific objection is m a d e . The court may accept, reject, or modify, in whole or in part, the recommendation made by the M a gis tra te Judge or may recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). Plaintiff was instructed by order filed April 14, 2009 to keep the Clerk of Court advised in w r itin g if his addressed changed for any reason. Plaintiff was informed that his case could be d i s m is s e d for failing to comply with the April 14, 2009 order. Nevertheless, Plaintiff has provided th e court with no change of address. It appears that Plaintiff no longer wishes to pursue this action. T h e court concurs in the Magistrate Judge's recommendation. The within action is dismissed with p re ju d ic e pursuant to Rule 41(b). IT IS SO ORDERED.

/ s / Margaret B. Seymour United States District Judge C o l u m b ia , South Carolina J a n u a ry 20, 2010.

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