Chestnut v. Warden Lieber Correctional Institution

Filing 32

ORDER adopting 30 Report and Recommendation that this action is DISMISSED with prejudice for failure to prosecute. Further, Respondent's 22 Motion for Summary Judgment is DENIED as moot. Signed by Honorable Timothy M Cain on 3/10/17. (kmca) (Main Document 32 replaced on 3/10/2017: to correct typo) (kmca).

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA GREENVILLE DIVISION Antoine F. Chestnut, Petitioner, vs. Warden, Lieber Correctional Institution, Respondent. ) ) ) ) ) ) ) ) ) ) Civil Action No. 6:16-2912-TMC ORDER Petitioner Antoine F. Chestnut, a state prisoner proceeding pro se, filed this habeas action pursuant to 28 U.S.C. § 2254. In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02, D.S.C., this matter was referred to a magistrate judge for pretrial handling. Before the court is the magistrate judge’s Report and Recommendation (“Report”), recommending that the action be dismissed with prejudice for failure to prosecute. (ECF No. 30). The parties were advised of their right to file objections to the Report. (ECF No. 30 at 3). However, neither party filed any objections to the Report, and the time to do has now run. The Report has no presumptive weight and the responsibility to make a final determination in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 27071 (1976). In the absence of objections, this court is not required to provide an explanation for adopting the Report. 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 advisory committee’s note). After a thorough review of the record in this case, the court adopts the Report (ECF No. 30) and incorporates it herein. Accordingly, this action is DISMISSED with prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) and the factors outlined in Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982). See Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989). Further, Respondent’s motion for summary judgment (ECF No. 22) is DENIED as moot. IT IS SO ORDERED. s/Timothy M. Cain United States District Judge March 10, 2017 Anderson, South Carolina NOTICE OF RIGHT TO APPEAL The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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