Nesmith v. Schwartz et al

Filing 30

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 26 Report and Recommendations that this action is DISMISSED for failure to prosecute under Rule 41(b). Signed by Honorable Joseph F Anderson, Jr on 1/13/10. (kmca)

U N I T E D STATES DISTRICT COURT D IS T R IC T OF SOUTH CAROLINA

C h ris to p h e r Nesmith, P l a in tif f , vs. M ich a e l Schwartz, Jail Admin Chief; Captain C . Wineglass; Doctor John Doe; Nurse Jane D o e , on behalf of Georgetown County and in t h e ir individual and official capacities at G eo rge tow n Detention Center, D e f e n d a n ts . ____________________________________

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C/A No. 6:09-1867-JFA-WMC

ORDER

T h e pro se plaintiff, Christopher Nesmith, brings this action pursuant to 42 U.S.C. § 1 9 8 3 . He is a pretrial detainee at the Georgetown County Detention Center and alleges v a rio u s constitutional violations by the defendants. Specifically, he contends that the d e f en d a n ts forced him to file him to sign a medical release form and that after his head was ste p p e d on by another inmate, the defendants did not give him adequate medical treatment. T h e defendants filed a motion for summary judgment. An order was then issued p u rs u a n t to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) notifying plaintiff of the s u m m a ry dismissal procedure and possible consequences if he failed to adequately respond to the motion for summary judgment. Plaintiff did not respond to the motion. The court then filed a second order on November 19, 2009 allowing the plaintiff a d d itio n a l time to respond to the motion for summary judgment. However, he did not 1

re sp o n d . T h e Magistrate Judge assigned to this action 1 has prepared a Report and R e c o m m e n d a tio n wherein he suggests that this action should be dismissed for lack of p ro se c u tio n pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The Report sets fo rth in detail the relevant facts and standards of law on this matter, and the court in c o rp o ra te s such without a recitation. The plaintiff was advised of his right to file objections to the Report and R e c o m m e n d a tio n , which was entered on the docket on December 21, 2009. However, the p la in tif f did not file any objections to the Report within the time limits prescribed. After a careful review of the record, the applicable law, and the Report and R e c o m m e n d a tio n , the court finds the Magistrate Judge's recommendation proper and in c o rp o ra ted herein by reference. Accordingly, this action is dismissed for failure to p rose cu te under Rule 41(b). IT IS SO ORDERED.

J a n u a ry 13, 2010 C o lu m b ia , South Carolina
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J o s e p h F. Anderson, Jr. U n ite d States District Judge

The Magistrate Judge's review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02. 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. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions of the Report to which specific objection is made and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

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