Harris v. Spartanburg, City of et al

Filing 42

ORDER RULING ON REPORT AND RECOMMENDATION 38 . The Report and Recommendation is incorporated and this action is DISMISSED with prejudice. Signed by Honorable Bruce Howe Hendricks on 3/11/2016. (kric, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Jeffrey Harris,

)
)
Plaintiff, )
)
vs.
)
)
City of Spartanburg, Spartanburg City
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Police Department, and Johnathan Lawson, )
)
Defendants. )
___________________________________

C/A No.: 7:15-2115-BHH

ORDER AND OPINION

Plaintiff Jeffrey Harris (“Plaintiff”), proceeding pro se and in forma pauperis, filed this
action pursuant to 42 U.S.C. § 1983.
This matter is before the Court on Defendants motion to dismiss pursuant to Federal
Rule of Civil Procedure 37(b)(2)(A) for failure to obey an order to provide discovery filed on
October 26, 2015. On the same date, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975), Plaintiff was advised of the dismissal procedure and the possible consequences
if he failed to respond adequately. Plaintiff did not file any response to the motion to
dismiss.
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 January 11, 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), and that Defendants’ motion to dismiss (ECF
No. 30) be rendered moot. (ECF No. 38.) 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.
Plaintiff was advised of his right to file objections to the Report and
Recommendation. (ECF No. 38-1.) On March 2, 2016, the envelope containing Plaintiff's
copy of the Report and Recommendation (ECF No. 38) was returned to the Clerk of Court,
marked “Return to Sender, Not Deliverable as Addressed, Unable to Forward.” (ECF No.
41.)
Plaintiff was advised by orders filed June 1, 2015, and July 29, 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 Nos. 11, 17.) Plaintiff filed
no objections, and the time for doing so expired on January 28, 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
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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
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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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