Mixson v. Commissioner of Social Security

Filing 29

ORDER RULING ON 25 REPORT AND RECOMMENDATION and 22 Motion to Dismiss, filed by Commissioner of Social Security. The court accepts Magistrate Judge Marchant's Report and Recommendation. The case is dismissed with prejudice for lack of prosecution and for failure to comply with the court's order. It is further ordered that Defendant's Motion to Dismiss is granted. Signed by Honorable J Michelle Childs on 08/21/2013. (egra, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Gary Bernard Mixson,

)
)
Plaintiff,
)
)
v.
)
)
Carolyn W. Colvin, Acting Commissioner )
of Social Security Administration,
)
)
Defendant.
)
____________________________________)

Civil Action No.: 9:13-cv-00088-JMC

ORDER

This matter is before the court for a review of the Magistrate Judge’s Report and
Recommendation (“Report”), [ Dkt. No. 25], filed on July 19, 2013, recommending that this action
be dismissed with prejudice, in accordance with Fed. R. Civ. P. 41(b) for lack of prosecution and
for failure to comply with the court’s orders [Dkt. No. 23] to reply to Defendant Carolyn W. Colvin,
Acting Commissioner of Social Security Administration’s Motion to Dismiss [Dkt. No. 22]. The
Report sets forth the relevant facts and legal standards which this court incorporates herein without
a recitation.
The Magistrate Judge’s Report and Recommendation 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. The recommendation 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 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).
The parties were notified of their right to file objections [Dkt. No. 25 at 4]. Plaintiff has not
filed any objections to the Report.

In the absence of objections to the Magistrate Judge’s Report and Recommendation, 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). Furthermore, failure to file specific written objections to the Report and
Recommendation 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); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th
Cir. 1984).
After a thorough review of the Report and Recommendation and the record in this case, the
court ACCEPTS the Magistrate Judge’s Report and Recommendation. [Dkt. No. 25]. It is therefore
ORDERED that Plaintiff’s Complaint [Dkt. No. 1] in the above-captioned case id DISMISSED
with prejudice, in accordance with Fed. R. Civ. P. 41(b) for lack of prosecution and for failure to
comply with the court’s order [Dkt. No. 23] to reply to Defendant Carolyn W. Colvin, Acting
Commissioner of Social Security Administration’s Motion to Dismiss [Dkt. No. 22]. It is further
ORDERED that Defendant’s Motion to Dismiss [Dkt. No. 22] is GRANTED.
IT IS SO ORDERED.

United States District Judge
August 21, 2013
Greenville, South Carolina

2