Johnson v. Lexington et al

Filing 59

ORDER ADOPTING REPORT AND RECOMMENDATIONS 55 , DISMISSING this action with prejudice for lack of prosecution and for failure to comply with this court's orders and DENYING AS MOOT 44 Motion to Dismiss filed by Trinity Food Service, 52 Motion to Dismiss/Lack of Prosecution filed by Trinity Food Service, and 45 Motion to Dismiss/Lack of Prosecution filed by James Metts. Signed by Honorable Henry M Herlong, Jr on December 3, 2010. (ncha, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ANDERSON/GREENWOOD DIVISION David Johnson, Plaintiff, vs. James Metts, Trinity Food Service, Defendants. ) ) ) ) ) ) ) ) ) C.A. No. 8:10-1277-HMH-BHH OPINION AND ORDER This matter is before the court for review of the Report and Recommendation of United States Magistrate Judge Bruce Howe Hendricks, made in accordance with 28 U.S.C. 636(b)(1) 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 this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those portions of the Report and Recommendation 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. See 28 U.S.C. 636(b)(1) (2006). The Plaintiff filed no objections to the Report and Recommendation. In the absence of objections to the magistrate judge's Report and Recommendation, this court is not required to give any explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). The court must "only satisfy itself that there is no clear error on the face 1 of the record in order to accept the recommendation." Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). After a thorough review of the Report and Recommendation and the record in this case, the court adopts Magistrate Judge Hendricks' Report and Recommendation and incorporates it herein. It is therefore ORDERED that this action is dismissed with prejudice for lack of prosecution and for failure to comply with this court's orders, pursuant to Federal Rule of Civil Procedure 41(b). It is further ORDERED that Trinity Food Service's motions to dismiss, docket numbers 44 and 52, and Metts' motion to dismiss, docket number 45, are denied as moot. IT IS SO ORDERED. s/Henry M. Herlong, Jr. Senior United States District Judge Greenville, South Carolina December 3, 2010 NOTICE OF RIGHT TO APPEAL The Plaintiff is hereby notified that he has the right to appeal this order within thirty (30) days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure. 2

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