Welch v. Sumter Lee Regional Detention Center et al

Filing 74

ORDER RULING ON 64 Report and Recommendation. This action is dismissed without prejudice for lack of prosecution and for failure to comply with this court's orders, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Signed by Honorable Joseph F Anderson, Jr on 9/12/13. (kmca)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

Adam Lee Welch,

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Petitioner,
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v.
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Warden, Sumter Lee Regional Detention
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Center; and S.C. Attorney General,
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Respondents.
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_______________________________________)

C/A No. 8:13-201-JFA-JDA

ORDER

The pro se petitioner, Adam Lee Welch, is an inmate with the South Carolina
Department of Corrections. He brings this petition under 28 U.S.C. § 2241 challenging his
detention in the Sumter Lee Regional Detention Center pending resolution of proceedings
pursuant to the South Carolina Sexually Violent Predator Act.
The Magistrate Judge assigned to this action1 has prepared a Report and
Recommendation wherein she suggests that this action should be dismissed for lack of
prosecution. The Report sets forth in detail the relevant facts and standards of law on this
matter, and the court incorporates such without a full recitation.

1

The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local
Civil Rule 73.02. The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the court.
Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those
portions of the Report 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 to the Magistrate
Judge with instructions. 28 U.S.C. § 636(b)(1).

1

The respondent South Carolina Attorney General has filed a motion to dismiss (ECF
No. 37) the petition arguing that this court should abstain from intervening in this action
under Younger v. Harris, 401 U.S. 37 (1971) because there is a pending state proceeding in
which petitioner’s claim regarding the validity of his current detention can be decided if
necessary. Alternatively, the Attorney General submits that dismissal is warranted because
petitioner has failed to exhaust all his available state remedies.
The Magistrate Judge issued an order on March 27, 2013 pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975) notifying petitioner of the summary dismissal
procedure and possible consequences if he failed to adequately respond to the motion to
dismiss. He did not respond to the motion. Defendant Sumter Lee Regional Detention
Center then filed a motion to dismiss (ECF No. 42) and the Magistrate Judge again advised
the petitioner of the dismissal procedures under Roseboro and gave the petitioner until May
2, 2013 to respond. However, the petitioner did not respond. The petitioner was then given
another opportunity until May 28, 2013 to respond to the motions to dismiss or the petition
would be dismissed for failure to prosecute.
The Magistrate Judge has reviewed this matter in light of the factors outlined in
Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982) and suggests that this
action should be dismissed with prejudice for lack of prosecution and failure to comply with
this court’s orders.

2

The Report and Recommendation was issued on August, 9, 2013 and the petitioner
was advised of his right to file objections thereto. Although petitioner still had not responded
to the motion to dismiss, he did file a pleading entitled “Motion of Objection to
Recommendation.” In this document, petitioner merely restates his claim that he is being
confined after completing his sentence. He attempts to adds a new claim that he was denied
proper dental care while confined at the Sumter Lee Regional Detention Center. Because the
petitioner does not provide specific objection to the Report, this court is not required to
conduct a de novo review of the objections.
After carefully reviewing the applicable laws, the record in this case, and the Report
and Recommendation, this court finds the Magistrate Judge’s recommendation fairly and
accurately summarizes the facts and applies the correct principles of law. The Report is
adopted and incorporated herein by reference, with one exception: the action is to be
dismissed without prejudice.
Accordingly, this action is dismissed without prejudice for lack of prosecution and for
failure to comply with this court’s orders, pursuant to Rule 41(b) of the Federal Rules of
Civil Procedure.
IT IS SO ORDERED.

Joseph F. Anderson, Jr.
United States District Judge

September 12, 2013
Columbia, South Carolina

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