Hunt v. Miller et al

Filing 44

ORDER RULING ON REPORT AND RECOMMENDATION 40 . It is the judgment of the Court Millers motion to dismiss for lack of prosecution is GRANTED. This matter is, thus, DISMISSED WITHOUT PREJUDICE Signed by Honorable Mary Geiger Lewis on 4/11/2018. (kric, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA GREENVILLE DIVISION Alteric Hunt, Plaintiff, vs. R. Miller, Defendant. § § § § CIVIL ACTION NO. 6:17-cv-2305-MGL § § § ORDER ADOPTING THE REPORT AND RECOMMENDATION AND GRANTING DEFENDANT’S MOTION TO DISMISS FOR LACK OF PROSECUTION Plaintiff Alteric Hunt filed this case under 42 U.S.C. § 1983. He is proceeding pro se. The matter is before the Court for review of the Report and Recommendation (Report) of the United States Magistrate Judge suggesting the Court grant Defendant R. Miller’s motion to dismiss for lack of prosecution. The Report was made in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of South Carolina. 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 the Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo determination of those portions of the Report 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. 28 U.S.C. § 636(b)(1). The Magistrate Judge filed the Report on March 19, 2018; and the Clerk of Court mailed a copy of it to Hunt that same day. On March 27, 2018, however, the Post Office returned Hunt’s copy of the Report to the Clerk marked: “RETURN TO SENDER[.] NOT DELIVERABLE AS ADDRESSED[.] UNABLE TO FORWARD[.]” The Magistrate Judge informed Hunt in a September 5, 2017, Proper Form Order to keep the Court apprised of his current address; and his failure to abide by the Order might result in the dismissal of his case. Hunt evidently failed to follow the dictates of the Order. “[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, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note). Moreover, a failure to object waives appellate review. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985). After a thorough review of the Report and the record in this case pursuant to the standard set forth above, the Court adopts the Report and incorporates it herein. Therefore, it is the judgment of the Court Miller’s motion to dismiss for lack of prosecution is GRANTED. This matter is, thus, DISMISSED WITHOUT PREJUDICE. IT IS SO ORDERED. Signed this 11th day of April, 2018, in Columbia, South Carolina. s/ Mary Geiger Lewis MARY GEIGER LEWIS UNITED STATES DISTRICT JUDGE ***** NOTICE OF RIGHT TO APPEAL Plaintiff is hereby notified of the right to appeal this Order within thirty days from the date hereof, pursuant to the Federal Rules of Appellate Procedure. 2

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