Howard v. Fuller et al

Filing 102

ORDER denying 38 Motion to Dismiss for Lack of Prosecution; affirming 53 Report and Recommendation. Signed by Honorable David C Norton on 12/19/2013.(eric, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
James Howard,

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Plaintiff,
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vs.
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Stephen Fuller, Chuck Lister, Steve Adwell, )
Shawn Brown and David Cummins,
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Defendants.
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____________________________________)

C/A No. 2:12-cv-2409 DCN JDA

ORDER

The above referenced case is before this court upon the magistrate judge's recommendation that defendants’ Motion to Dismiss and/or File Responsive Pleadings Out of Time (ECF No.
19) be dismissed as moot, plaintiff’s Motion for Preliminary Injunction be denied, and
defendants’ Motion to Dismiss for Lack of Prosecution be denied.
This court is charged with conducting a de novo review of any portion of the magistrate
judge's report to which a specific objection is registered, and may accept, reject, or modify, in
whole or in part, the recommendations contained in that report. 28 U.S.C. § 636(b)(1).
However, absent prompt objection by a dissatisfied party, it appears that Congress did not intend
for the district court to review the factual and legal conclusions of the magistrate judge. Thomas
v Arn, 474 U.S. 140 (1985). Additionally, any party who fails to file timely, written objections
to the magistrate judge's report pursuant to 28 U.S.C. § 636(b)(1) waives the right to raise those
objections at the appellate court level. United States v. Schronce, 727 F.2d 91 (4th Cir. 1984),
cert. denied, 467 U.S. 1208 (1984 ).1
1

Objections to the magistrate judge’s report and

In Wright v. Collins, 766 F.2d 841 (4th Cir. 1985), the court held "that a pro se litigant
must receive fair notification of the consequences of failure to object to a magistrate judge's
report before such a procedural default will result in waiver of the right to appeal. The notice

recommendation were timely filed on May 29, 2013.
On August 23, 2013, plaintiff withdrew his Motion for Preliminary Injunction. On August
27, 2013, defendants withdrew their Motion to Dismiss and/or File Responsive Pleadings Out of
Time. The remaining motion before the court is defendants’ Motion to Dismiss for Lack of
Prosecution. A de novo review of the record indicates that the magistrate judge's report
accurately summarizes this case and the applicable law. Accordingly, the magistrate judge’s
Report and Recommendation is AFFIRMED, and defendants’ Motion to Dismiss for Lack of
Prosecution is DENIED.
AND IT IS SO ORDERED.

David C. Norton
United States District Judge
December 19, 2013
Charleston, South Carolina

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

must be 'sufficiently understandable to one in appellant's circumstances fairly to appraise him
of what is required.'" Id. at 846. Plaintiff was advised in a clear manner that his objections
had to be filed within ten (10) days, and he received notice of the consequences at the
appellate level of his failure to object to the magistrate judge's report.