Bennett v. Beckett et al

Filing 73

ORDER RULING ON 70 REPORT AND RECOMMENDATION that the case be dismissed pursuant to Fed.R.Civ.P. 41(b) for failure to prosecute. Signed by Honorable Mary G Lewis on 8/29/12. (kmca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

Edward Billy Bennett,

)
)
Plaintiff,
)
)
-vs)
)
Lt. Dallas Beckett; Warden Bernard )
Mackie; Dayne Haile; Medical
)
Director Yolanda Hernadez; Dr.
)
Neville; Nurse Murphy; Sgt C.
)
Parker; Commissioner SCDC
)
William Byers,
)
)
Defendants.
)
______________________________)

Civil Action No. 8:11-2886-MGL

Opinion and Order

Plaintiff Edward Billy Bennett, proceeding pros se, filed this action pursuant to 42 U.S.C.
§ 1983. At the time of the underlying events, Plaintiff was an inmate in custody of the South
Carolina Department of Corrections (SCDC).
This matter is now before the Court on Defendants’ motion for summary judgment which
was filed on May 29, 2012. (ECF No. 58.) By order filed on May 29, 2012, pursuant to Roseboro
v. Garrison, 528 F.2d 309 (4th Cir.1975), Plaintiff was advised of the applicable procedures and the
possible consequences if he failed to respond adequately. Plaintiff filed no response to Defendants’
motion for summary judgment. (ECF No. 59.) As Plaintiff is proceeding pro se, the Court filed a
second Order on July 11, 2012, giving Plaintiff through July 31, 2012 to file his response to the
motion for summary judgment. (ECF No. 65.) Plaintiff was specifically advised that if he failed to
respond, this action would be dismissed for failure to prosecute. Plaintiff once again filed no
response to the pending motion for summary judgment.

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. On August 6, 2012, the
Magistrate Judge filed a Report and Recommendation in which recommended that the case be
dismissed for failure to prosecute pursuant to Fed.R.Civ.P. 41(b). 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). 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 thoroughly reviewed the record. The Court concurs with the Magistrate
Judge's recommendation that the case be dismissed pursuant to Fed.R.Civ.P. 41(b) for failure to
prosecute.
IT IS SO ORDERED.

s/ Mary G. Lewis
United States District Judge
Spartanburg, South Carolina
August 29, 2012