Gary v. South Carolina Department of Corrections et al

Filing 70

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 66 Report and Recommendations, that this action is dismissed with prejudice pursuant to Rule 41(b) for failure to prosecute. Signed by Chief Judge Margaret B Seymour on 5/17/12. (kmca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Eugene Gee Gary,

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) C/A No. 8:10-2037-MBS
Plaintiff,
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vs.
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ORDER
South Carolina Department of Corrections, )
Jon Ozmint, Jane Doe, John Doe, SCDC
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Officers, and Other Unknown Defendants, )
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Defendants.
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____________________________________)
Plaintiff Eugene Gee Gary is an inmate in custody of the South Carolina Department of
Corrections. Plaintiff currently is housed at Lieber Correctional Institution in Ridgeville, South
Carolina. Plaintiff, proceeding pro se, filed the within complaint in the Court of Common Pleas for
Dorchester County, South Carolina, seeking relief pursuant to 42 U.S.C. § 1983. Defendants
removed the case to this court on August 4, 2010. Plaintiff filed an amended complaint on
November 8, 2010. In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter
was referred to United States Magistrate Judge Jacquelyn D. Austin for pretrial handling.
This matter is before the court on Defendants’ motion for summary judgment, which motion
was filed on September 20, 2011. On September 21, 2012, in accordance with Roseboro v. Garrison,
528 F.2d 309 (4th Cir. 1975), Plaintiff was advised of the summary judgment procedures and the
possible consequences of failing to respond adequately. Plaintiff filed no response to the motion for
summary judgment. On February 28, 2012, the Magistrate Judge issued an order granting Plaintiff
until March 19, 2012 to file his response to Defendants’ motion. Plaintiff specifically was advised
that if he failed to respond, this action would be subject to dismissal. See Fed. R. Civ. P. 41(b). On

March 19, 2012, Plaintiff filed a motion for extension of time to respond to Defendants’ motion for
summary judgment. The Magistrate Judge granted Plaintiff’s motion on March 20, 2012, and
granted Plaintiff until April 18, 2012 to file his response. Nevertheless, Plaintiff filed no response
to Defendants’ motion for summary judgment.
On April 24, 2012, the Magistrate Judge issued a Report and Recommendation in which she
recommended that the within complaint be dismissed pursuant to Rule 41(b) for failure to prosecute.
Plaintiff filed no objections to the Report and Recommendation.
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 (1976). This 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)(1).
This court may also receive further evidence or recommit the matter to the Magistrate Judge with
instructions. Id. This court is obligated to conduct a de novo review of every portion of the
Magistrate Judge’s report to which objections have been filed. Id. 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).
The court has carefully reviewed the record and concurs in the recommendation of the
Magistrate Judge. The court adopts the Report and Recommendation and incorporates it herein by
reference. The within action is dismissed with prejudice pursuant to Rule 41(b) for failure to

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prosecute.
IT IS SO ORDERED.

/s/ Margaret B. Seymour
Chief United States District Judge
Columbia, South Carolina
May 17, 2012

NOTICE OF RIGHT TO APPEAL
Plaintiff is 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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