Christenbury v. Superintendent Leath Correctional Institution

Filing 38

ORDER RULING ON REPORT AND RECOMMENDATION 35 . It is ORDERED that Petitioners § 2254 petition is DISMISSED with prejudice for failure to prosecute. A certificate of appealability is denied. Signed by Honorable R Bryan Harwell on 4/28/2015. (kric, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Myra Christenbury,
Petitioner,
v.
Superintendent Leath Correctional
Institution,
Respondent.

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Civil Action No.: 6:14-cv-2872-RBH

ORDER

Petitioner Myra Christenbury (“Petitioner”), a state prisoner proceeding pro se, filed this
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on July 21, 2014. See Pet., ECF
No. 1. The matter is before the Court for review of the Report and Recommendation (“R & R”) of
United States Magistrate Judge Kevin F. McDonald, made in accordance with 28 U.S.C.
§ 636(b)(1)(B) and Local Rule 73.02 for the District of South Carolina. See R & R, ECF No. 35. In
the Report and Recommendation, the Magistrate Judge recommends that the Court dismiss this
action for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See
id. at 2.1

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As the Magistrate Judge detailed in his R & R, Respondent filed a return to the petition and a
motion for summary judgment on November 21, 2014. See Mot., ECF No. 21; Return, ECF No. 22.
Because Petitioner is proceeding pro se, the Court entered a Roseboro Order on November 21,
2014, advising Petitioner of the summary judgment procedures and the possible consequences if he
failed to respond. See Order, ECF No. 23 at 1–2. The Order directed Petitioner to respond within
thirty-four (34) days, making the deadline December 29, 2014. Id. Petitioner did not file a
response. As she is proceeding pro se, the Court entered an Order on January 7, 2015, giving
Petitioner through January 28, 2015 to file her response. See Order, ECF No. 26. Petitioner did not
file a timely response. However, on February 3, 2015, Petitioner filed a motion for an extension of
time to file a response, which the Court received on February 5, 2015. See ECF No. 30. The Court
granted her motion on February 6, 2015 via Text Order, and extended Plaintiff’s deadline to file a
response to March 9, 2015, see Text Order, ECF No. 31. Petitioner, however, did not file any
response. Accordingly, on March 31, 2015, the Magistrate Judge issued his R & R recommending

The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight. The responsibility to make a final determination remains with this
Court. See Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The Court is charged with making a
de novo determination of those portions of the Report and Recommendation 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 with instructions. See 28 U.S.C.
§ 636(b)(1).
No party has filed objections to the Report and Recommendation.

In the absence of

objections to the Report and Recommendation of the Magistrate Judge, this Court is not required to
give any explanation for adopting the recommendations. See Camby v. Davis, 718 F.2d 198, 199
(4th Cir. 1983). The Court reviews only for clear error in the absence of an objection. See
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310 (4th Cir. 2005) (stating that “in the
absence of a timely filed objection, a district court need not conduct 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’”) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
Furthermore, a certificate of appealability will not issue absent “a substantial showing of the
denial of a constitutional right.” 28 U .S.C. § 2253(c)(2). When the district court denies relief on
the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that
the court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529
U.S. 473, 484 (2000); see Miller–El v. Cockrell, 537 U.S. 322, 336–38 (2003). When the district
court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive
procedural ruling is debatable, and that the petition states a debatable claim of the denial of a

that the action be dismissed or failure to prosecute. See ECF No. 35. As of the date of this Order,
the Court has not received any response from Petitioner.
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constitutional right. Slack, 529 U.S. at 484–85. In the instant matter, the Court concludes that
Petitioner has failed to make the requisite showing of “the denial of a constitutional right.”
After a thorough review of the record in this case, the Court finds no clear error.
Accordingly, the Report and Recommendation of the Magistrate Judge is adopted and incorporated
by reference. Therefore, it is ORDERED that Petitioner’s § 2254 petition is DISMISSED with
prejudice for failure to prosecute pursuant to Fed. R. Civ. P. 41(b).
IT IS FURTHER ORDERED that a certificate of appealability is DENIED because the
Petitioner has failed to make “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Florence, South Carolina
April 28, 2015

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