Dendy v. Hoyes et al

Filing 37

ORDER RULING ON REPORT AND RECOMMENDATION adopts the Magistrate Judges Report and Recommendation 35 . Defendants Motion for Summary Judgment 26 is DENIED as moot. It is therefore ORDERED that Plaintiffs action is DISMISSED with prejudice. Signed by Honorable J Michelle Childs on 5/16/2016. (gpre, ) Modified on 5/16/2016 to edit text (gpre, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Jonathan Antonio Dendy,

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Plaintiff,
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v.
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Christopher Hoyes; Mark McCoy; MD
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Cannon; and Sergeant Epps,
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)
Defendants.
)
____________________________________)

Civil Action No.: 6:15-cv-03041-JMC

ORDER AND OPINION

Plaintiff Jonathan Dendy (“Plaintiff”), proceeding pro se, brought this action seeking relief
pursuant to 42 U.S.C. § 1983. Plaintiff files this action in forma pauperis under 28 U.S.C. § 1915.
Plaintiff alleges that he was wrongfully arrested and falsely imprisoned as a result of Defendants’
actions. (ECF No. 1 at 4). Plaintiff seeks damages in the form of living expenses and lost wages.
(ECF No. 1 at 5).
This matter is before the court pursuant to 28 U.S.C. § 1915(e)(2)(B), which requires the
court to dismiss civil actions filed in forma pauperis if they are frivolous or fail to state a claim
upon which relief can be granted. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02, D.S.C., the matter was referred to United States Magistrate Judge Kevin McDonald for a
Report and Recommendation. Defendants filed a Motion for Summary Judgment along with a
Memorandum in Support on November 12, 2015. (ECF No. 26). On November 13, 2015, the
Magistrate Judge entered an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
advising Plaintiff of the summary judgment procedure and the possible consequences if he failed
to respond adequately. (ECF No. 28). Subsequently, on February 17, 2016, the Magistrate Judge
entered an order extending the deadline for Plaintiff to file a response to Defendants’ motion. (ECF

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No. 31). No response was filed.
On March 15, 2016, the Magistrate Judge issued a Report and Recommendation (“Report”)
recommending the court dismiss the petition for lack of prosecution pursuant to Fed. R. Civ. P.
41(b). (ECF No. 35). The Report sets forth the relevant facts and legal standards, which this court
incorporates herein without a recitation.
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and Local
Civil Rule 73.02 for the District of South Carolina.
recommendation to this court.

The Magistrate Judge makes only a

The recommendation has no presumptive weight.

The

responsibility to make a final determination remains with this court. See Matthews 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 to which specific objections are made, and the court may accept, reject, or
modify, in whole or in part, the Magistrate Judge’s recommendation, or recommit the matter with
instructions. See 28 U.S.C. § 636 (b)(1). Objections to a Report and Recommendation must
specifically identify portions of the Report and the basis for those objections. Fed. R. Civ. P. 72(b).
“[I]n the absence of a timely filed objection, a district court need not conduct a 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.’” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 316 (4th
Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
Plaintiff was advised of his right to file objections to the Report. (ECF No. 35 at 3).
Plaintiff was required to file objections by April 1, 2016. To date, Plaintiff has not filed any
objections to the report, nor has Plaintiff filed a response to Defendants’ motion for summary
judgment. Accordingly, this court has reviewed the Report of the Magistrate Judge and does not
find clear error.

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After a thorough review of the Report and the record in this case, the court finds the Report
provides an accurate summary of the facts and law. The court ADOPTS the Magistrate Judge’s
Report and Recommendation (ECF No. 35). Defendants’ Motion for Summary Judgment (ECF
No. 26) is DENIED as moot. It is therefore ORDERED that Plaintiff’s action (ECF No. 1) is
DISMISSED with prejudice.
IT IS SO ORDERED.

United States District Judge

May 16, 2016
Columbia, South Carolina 

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