Simmons v. McFadden

Filing 27

ORDER RULING ON REPORT AND RECOMMENDATION adopting 25 Report and Recommendation and this case is dismissed. The legal standard for the issuance of a certificate of appealability has not been met. Signed by Honorable J Michelle Childs on 4/30/2015. (gpre, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Richard Simmons,

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Petitioner,
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v.
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Joseph McFadden,
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Respondent.
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____________________________________)

Civil Action No. 8:14-cv-03827-JMC

ORDER

This matter is before the court upon review of Magistrate Judge Jacquelyn D. Austin’s
Report and Recommendation (“Report”), filed on March 26, 2015 (ECF No. 25), recommending
that the case be dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure
41(b) for Petitioner Richard Simmons’ failure to respond to Respondent Joseph McFadden’s
Motion for Summary Judgment (ECF No. 19).
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a
recommendation to this court, which has no presumptive weight. 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 to which specific objections are made.
The parties were advised of their right to file objections to the Report. (ECF No. 25-1.)
However, neither party filed any objections to the Report.
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
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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). Furthermore, failure to file specific written objections to the Report results in a party’s
waiver of the right to appeal from the judgment of the District Court based upon such
recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985).
After a thorough review of the Report and the record in this case, the court finds the
Report provides an accurate summary of the facts and law. The court ADOPTS the Magistrate
Judge’s Report and Recommendation (ECF No. 25) and this case is DISMISSED.
Certificate of Appealability
The law governing certificates of appealability provides that:
(c)(2) A certificate of appealability may issue… only if the applicant has made a
substantial showing of the denial of a constitutional right.
(c)(3) The certificate of appealability… shall indicate which specific issue or
issues satisfy the showing required by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable
jurists would find this court’s assessment of his constitutional claims is debatable or wrong and
that any dispositive procedural ruling by the district court is likewise debatable. See Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee,
252 F.3d 676, 683 (4th Cir. 2001). In this case, the legal standard for the issuance of a certificate
of appealability has not been met.
IT IS SO ORDERED.

United States District Judge
April 30, 2015
Columbia, South Carolina
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