Goldman v. Hines et al

Filing 49

ORDER RULING ON REPORT AND RECOMMENDATION. The Court adopts the 46 Report and Recommendation as the order of the Court. This case is dismissed for failure to prosecute pursuant to Rule 41(b). Signed by Honorable Richard M Gergel on 5/11/18. (kmca)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION

Jeffery Daryl Goldman,

Plaintiff,
v.

Robbie Hines, Jennifer Nave, and
Derrick 0 ' Shields,
Defendants.

Case No .: 6: 17-1802

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ORDER AND OPINION

This matter is before the Court on the Report and Recommendation ("R. & R. ") of the
Magistrate Judge (Dkt. No. 46) recommending that this Court dismiss this case for lack of
prosecution pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. For the reasons set
forth below, the Court adopts the R. & R. as the order of the Court.
I.

Background and Relevant Facts

Plaintiff, a former state prisoner who is proceeding pro se, filed this action seeking relief
under Title 42, United States Code, Section 1983. As explained in the R. & R., the Magistrate
Judge has given Plaintiff more than one opportunity to respond to Defendants' Motion to
Dismiss which has been pending since January 12, 2018, but Plaintiff has not filed a response.
The Magistrate Judge has therefore recommended that this Court dismiss the complaint for
failure to prosecute.
II.

Legal Standard

This Court liberally construes complaints filed by pro se litigants to allow the
development of a potentially meritorious case. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v.
Kerner, 404 U.S . 519 (1972). The requirement of liberal construction does not mean that the
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Court can ignore a clear failure in the pleadings to allege facts which set forth a viable federal
claim, nor can the Court assume the existence of a genuine issue of material fact where none
exists. See Weller v. Dep 't ofSocial Services, 901F.2d387 (4th Cir. 1990).
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with
making a de nova determination of those portions of the Report and Recommendation to which
specific objection is made. Additionally, the Court may "accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l).

III.

Discussion

No party has filed objections to the R. & R., and the deadline to file objections has
passed. In the absence of any specific objections, "a district court need not conduct a de nova
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." See Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005) (internal quotation omitted). This Court finds that the Magistrate
Judge has correctly applied the controlling law to the facts of this case.

IV.

Conclusion

For the reasons set forth above, the Court adopts the R. & R. (Dkt. No. 46) as the order of
the Court. This case is dismissed for failure to prosecute pursuant to Rule 41 (b).
AND IT IS SO ORDERED.

~M~gel

United States District Court Judge
May / J
, 2018
Charleston, South Carolina

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