Holmes v. Commissioner of Social Security

Filing 22

ORDER adopting 19 Report and Recommendation. It is the judgment of this Court the case is DISMISSED WITHOUT PREJUDICE pursuant to Fed. R. Civ. P. 41(b). Signed by Honorable Mary Geiger Lewis on 9/14/2017.(abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
BENJAMIN HOLMES,
Plaintiff,
vs.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 8:17-01385-MGL

ORDER ADOPTING THE REPORT AND RECOMMENDATION AND DISMISSING
THE CASE WITHOUT PREJUDICE PURSUANT TO FED. R. CIV. P. 41(b)
This is an appeal from a denial of social security benefits.

Plaintiff is proceeding pro se.

The matter is before the Court for review of the Report and Recommendation (Report) of the
United States Magistrate Judge suggesting the case be dismissed without prejudice for failure to
prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.

The Report was

made in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of South
Carolina.
The Magistrate Judge makes only a recommendation to this Court.
recommendation has no presumptive weight.
remains with the Court.

The

The responsibility to make a final determination

Mathews v. Weber, 423 U.S. 261, 270 (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 with instructions.

28 U.S.C. § 636(b)(1).

The Magistrate Judge filed the Report on August 31, 2017, but Plaintiff failed to file any
objections to the Report.

“[I]n 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).

Moreover, a failure to object waives appellate review.

Wright v. Collins, 766 F.2d 841,

845-46 (4th Cir. 1985).
Notably, at the outset of the action, the Magistrate Judge directed Plaintiff to keep the
Clerk of Court abreast of any address changes and warned him his “case may be dismissed for
violating th[e] Order.” ECF No. 12 at 3; ECF No. 15 at 3.

Nevertheless, inasmuch as the Post

Office returned Plaintiff’s mail to the Clerk on September 12, 2017, marked “REFUSED,”
RETURN TO SENDER,” “NO MAIL RECEPTACLE,” and “UNABLE TO FORWARD,” ECF
No. 21, it appears Plaintiff has failed to follow the Magistrate Judge’s Orders regarding any
change of address.
After a thorough review of the Report and the record in this case pursuant to the standard
set forth above, the Court adopts the Report and incorporates it herein.

Therefore, it is the

judgment of this Court the case is DISMISSED WITHOUT PREJUDICE pursuant to Fed. R.
Civ. P. 41(b).
IT IS SO ORDERED.
Signed this 14th day of September, 2017, in Columbia, South Carolina.
s/ Mary Geiger Lewis
MARY GEIGER LEWIS
UNITED STATES DISTRICT JUDGE