Cutner v. Wilson et al
ORDER RULING ON REPORT AND RECOMMENDATION 90 . The Plaintiffs motion to dismiss Defendants Marshal and Harrington from this action is GRANTED.IT IS FURTHER ORDERED that Defendants motions to dismiss (ECF Nos.68 & 90) are DENIED AS MOOT. Signed by Honorable G Ross Anderson, Jr on 7/15/2013. (kric, )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Ofc. Michael Marshal, Ofc. K.
Harrington, and Sgt. Wilson Simmons, )
C/A No.: 6:12-cv-02544-GRA-KFM
This matter comes before the Court for review of United States Magistrate
Judge Kevin F. McDonald’s Report and Recommendation made in accordance
with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(d) of the District of
South Carolina, and filed on May 23, 2013. Magistrate Judge McDonald
recommends that this Court dismiss Plaintiff Lamont Cutner’s (“Plaintiff’s”)
claims against Defendants Michael Marshal and K. Harrington (“Defendants
Marshal and Harrington”) pursuant to Rule 41 of the Federal Rules of Civil
Procedure for failure to prosecute. ECF No. 86. Neither party objected to the
magistrate’s Report and Recommendation; however, Plaintiff has filed a motion
to dismiss Defendants Marshal and Harrington from the action. For the reasons
stated herein, the Court declines to adopt the Report and Recommendation and
grants Plaintiff’s motion to dismiss.
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Standard of Review
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 for the development of a potentially meritorious claim. Boag
v. MacDougall, 454 U.S. 364, 365 (1982). A court may not construct the
plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411 (7th
Cir.1993), nor is a district court required to recognize “obscure or extravagant
claims defying the most concerted efforts to unravel them.” Beaudett v. City of
Hampton, 775 F.2d 1274, 1277 (4th Cir.1985), cert. denied, 475 U.S. 1088
Plaintiff, a state inmate, brought this claim pursuant to 42 U.S.C. § 1983.
ECF No. 1. On March 12, 2013, Defendants Marshal and Harrington filed a
motion to dismiss for failure to state a claim upon which relief may be granted.
ECF No. 68. The magistrate entered an order on March 13, 2013, pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the
importance of Defendants’ motion and of the need for him to file an adequate
response. ECF No. 71. On February 26, 2013, Plaintiff filed a motion to amend
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his Complaint, which was docketed on March 15, 2013. ECF No. 78.1 The
motion to amend did not address Defendants’ motion to dismiss. Thus, on April
30, 2013, the magistrate issued an order that warned Plaintiff that if he did not
respond to the motion to dismiss, Defendants Marshal and Harrington may be
dismissed from the action for Plaintiff’s failure to prosecute pursuant to Federal
Rule of Civil Procedure 41(b). ECF No. 80. The time for response lapsed on
May 20, 2013, and Plaintiff did not respond by that date.
On May 23, 2013, the Magistrate Judge issued a Report and
Recommendation recommending that Defendants Marshal and Harrington be
dismissed from the action for Plaintiff’s failure to prosecute. Report &
Recommendation 3, ECF No. 86. Neither party objected to the Report and
Recommendation; however, on June 4, 2013, Defendants filed a motion to
dismiss for failure to state a claim and/or failure to prosecute. ECF No. 90.
Thus, the magistrate entered another order pursuant to Roseboro, 528 F.2d 309,
advising Plaintiff of the importance of Defendants’ motion and of the need for
him to file an adequate response by July 11, 2013. ECF No. 91. On June 21,
2013, Plaintiff filed a motion to dismiss Defendants Marshal and Harrington from
the action. ECF No. 94.
A prisoner’s motion is deemed filed when it is delivered to prison authorities for mailing to the
district court. See Houston v. Lack, 487 U.S. 266, 270, 108 S. Ct. 2379, 101 L.Ed.2d 245
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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 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. “The failure to file objections to the report and
recommendation waives any further right to appeal.” Smith v. Detroit Fed’n of
Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987); see Carter v.
Pritchard, 34 F. App’x 108, 108 (4th Cir. 2002) (per curiam). Furthermore, 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, 199 (4th Cir. 1983). In this case, objections were due
by June 10, 2013. Neither the defendant nor the plaintiff filed any objections to
the Magistrate Judge’s Report and Recommendation.
In the Report and Recommendation, the Magistrate Judge recommends
dismissing the case against Defendants Marshal and Harrington pursuant to
Federal Rule of Civil Procedure 41(b) for failure to prosecute. Subsequent to the
filing of the Report and Recommendation, however, Plaintiff filed a motion to
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dismiss Defendants Marshal and Harrington. Thus, as Plaintiff has responded to
Defendants’ motions, the Court declines to dismiss the case for failure to
After reviewing Plaintiff’s motion to dismiss and the record, the
Court finds that Plaintiff’s request to dismiss Defendants Marshal and Harrington
appears to be appropriate under the circumstances.
IT IS THEREFORE ORDERED that Plaintiff’s motion to dismiss Defendants
Marshal and Harrington from this action is GRANTED.
IT IS FURTHER ORDERED that Defendants’ motions to dismiss (ECF Nos.
68 & 90) are DENIED AS MOOT.
IT IS SO ORDERED.
July 15 , 2013
Anderson, South Carolina
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