Nelson v. Marshall et al

Filing 76

ORDER ADOPTING 72 REPORT AND RECOMMENDATIONS, dismissing this action with prejudice for failure to prosecute under Rule 41(b). Signed by Honorable Joseph F Anderson, Jr on 10/22/10. (rpol, )

N e l s o n v. Marshall et al

D o c . 76

U N I T E D STATES DISTRICT COURT D IS T R IC T OF SOUTH CAROLINA

A n to n io Lamar Nelson, P l a in tif f , vs. O f f ic e r C. Marshall and Officer Melron K e l l y, D e f e n d a n ts . ____________________________________

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C/A No. 9:07-3974-JFA-BM

ORDER

T h e pro se plaintiff, Antonio Lamar Nelson, brings this action pursuant to 42 U.S.C. § 1983. The Magistrate Judge assigned to this action 1 has prepared a Report and R e c o m m e n d a tio n wherein he suggests that this action should be dismissed for lack of p ro s e c u tio n pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. In addition, the M a g istra te Judge has considered the Fourth Circuit's four-prong test2 in determining his re c o m m e n d a tio n that the action should be dismissed. The Report sets forth in detail the re le v a n t facts and standards of law on this matter, and the court incorporates such without

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). Davis v. Williams, 588 F.2d 69 (4th Cir. 1978); see also Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989); and Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982).
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a recitation. The Magistrate Judge notes that on August 19, 2010, a notice of case reassignment w a s mailed to the plaintiff, but it was returned to sender. Another order was entered on S e p te m b e r 15, 2010 providing the plaintiff with an opportunity to advise the court whether h e wished to continue to prosecute this case. The plaintiff failed to respond to that order. T h e plaintiff was further advised of his right to file objections to the Report and R e c o m m e n d a tio n , which was entered on the docket on September 29, 2010. However, the p la in tif f did not file any objections to the Report within the time limits prescribed. After a careful review of the record, the applicable law, and the Report and R e c o m m e n d a t io n , the court finds the Magistrate Judge's recommendation proper and in c o rp o ra te d herein by reference. Accordingly, this action is dismissed with prejudice for fa ilu re to prosecute under Rule 41(b). IT IS SO ORDERED.

O c to b e r 22, 2010 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

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