Moorehead v. Godfrey
ORDER RULING ON REPORT AND RECOMMENDATION 29 . The Report and Recommendation is incorporated herein by reference and this action is DISMISSED with prejudice. Signed by Honorable Bruce Howe Hendricks on 3/11/2016. (kric, ) Modified on 3/11/2016 to edit text (kric, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Jerry T. Moorehead,
C/A No.: 6:15-4253-BHH
ORDER AND OPINION
Plaintiff Jerry T. Moorehead (“Plaintiff”), proceeding pro se and in forma pauperis,
filed this action pursuant to 42 U.S.C. § 1983.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), DSC, this
matter was referred to United States Magistrate Judge Kevin F. McDonald for pre-trial
proceedings and a Report and Recommendation. On February 16, 2016, the Magistrate
Judge issued a Report and Recommendation in which he recommended that the case be
dismissed for lack of prosecution pursuant to Federal Rule of Civil Procedure 41(b), Ballard
v. Carlson, 882 F.2d 93, 95 (4th Cir.1989). (ECF No. 29.) The Magistrate Judge makes only
a recommendation to this Court. The recommendation has no presumptive weight. The
responsibility for making a final determination remains with this Court. Mathews v. Weber,
423 U.S. 261, 270, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The Court may accept, reject, or
modify, in whole or in part, the Report and Recommendation or may recommit the matter
to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
‘The authority of a court to dismiss sua sponte for lack of prosecution has generally
been considered an ‘inherent power,’ governed not by rule or statute but by the control
necessarily vested in courts to manage their own affairs so as to achieve the orderly and
expeditious disposition of cases.” See Link v. Wabash R.R. Co., 370 U.S. 626, 630–31,
82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). As well as inherent authority, this Court may sua
sponte dismiss a case for lack of prosecution under Fed. R. Civ. P. 41(b). Id. at 630.
On March 3, 2016, the envelope containing Plaintiff’s copy of the Report and
Recommendation (ECF No. 34) was returned to the Clerk of Court, marked “Return to
Sender, Attempted - Not Known, Unable to Forward.” (ECF No. 36.)
Plaintiff was advised by order filed October 19, 2015, of his responsibility to notify
the Court in writing if his address changed and that his case could be dismissed for failing
to comply with the Court's order. (ECF No. 9.) Plaintiff filed no objections, and the time for
doing so expired on March 4, 2016. In the absence of objections to the Magistrate Judge’s
Report and Recommendation, this Court is not required to provide an explanation for
adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
Rather, “in 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, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 and advisory
committee’s note). Plaintiff has failed to comply with this Court’s orders. As such, the Court
finds that this case should be dismissed pursuant to Fed. R. Civ. P. 41(b).
After a careful review of the record, the applicable law, and the Report and
Recommendation, the Court finds the Magistrate Judge’s recommendation to be proper.
Accordingly, the Report and Recommendation is incorporated herein by reference and this
action is DISMISSED with prejudice.
IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge
March 11, 2016
Greenville, South Carolina
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified that any right to appeal this Order is governed by
Rules 3 and 4 of the Federal Rules of Appellate Procedure.
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