Austin v. Cartledge

Filing 26

ORDER ADOPTING 22 REPORT AND RECOMMENDATION. It is therefore ORDERED that the action is DISMISSED with prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). Signed by Honorable Timothy M Cain on 3/15/13. (kmca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Danny Flanders Austin,
Petitioner,
v.
Warden Leroy Cartledge,
Respondent.

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C/A No. 8:12-2670-TMC
ORDER

Petitioner, a state prisoner proceeding pro se, filed this habeas petition pursuant
to 28 U.S.C. § 2254. This matter is before the court for review of the Report and
Recommendation of the United States Magistrate Judge Jacquelyn D. Austin made in
accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of
South Carolina (“Report”).
The Magistrate Judge makes only a recommendation to this court.
recommendation has no presumptive weight.

The

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 objections are made, and the court
may accept, reject, or modify, in whole or in part, the Magistrate Judge’s
recommendation, or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
On December 12, 2012, Respondent moved for summary judgment. (Dkt. No.
16.)

Petitioner was advised of his right to respond to Respondent’s motion on

December 13, 2012, (Dkt. No. 17), and again on January 23, 2013 (Dkt. No. 20).
Additionally, Petitioner was specifically advised that if he failed to respond, this action
would be dismissed for failure to prosecute. However, Petitioner still failed to respond.

Accordingly, the Magistrate Judge filed a Report, recommending that this action
be dismissed for lack of prosecution. (Dkt. No. 22.) The Petitioner was advised of his
right to file objections to the Report. (Dkt. No. 22-1). However, the Petitioner has not
filed objections and the time for doing so has run.
In the absence of objections to the Magistrate Judge’s Report, 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 Fed. R. Civ. P. 72 advisory committee’s note).
After a thorough review of the Report and Recommendation and the record in
this case, the court adopts the Magistrate Judge’s Report and Recommendation (Dkt.
No. 22) and incorporates it herein. It appears the Petitioner no longer wishes to
prosecute this action. It is therefore ORDERED that the action is DISMISSED with
prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) and
the factors outlined in Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir.
1982). See Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989).
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
March 15, 2013
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules
3 and 4 of the Federal Rules of Appellate Procedure.