Hause v. Bastian et al

Filing 41

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant and DISMISSING this action without prejudice. Signed by Honorable Richard M Gergel on 2/25/2015.(cwhi, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA' / Zu\5FEB2S p \:41 Stephen Mark Hause, Plaintiff, v. Lt. Jeremy Vetter, Major Jones, James Metts, CO Haldane Bastain, Michael Hudson, Sgt. Travis Felder, and Sgt. Melissa K. Lyons, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) CIA No.: 9:13-3531-RMG ORDER ------------- ) For the reasons set forth below, the Court agrees and adopts the Report and Recommendation ("R & R") of the Magistrate Judge, (Dkt. No. 39), as the order of the Court. Background Plaintiff Stephen Mark Hause, an inmate at Lexington County Detention Center in Lexington, South Carolina, filed this action pro se pursuant to 42 U.S.c. § 1983. (Dkt. No.1). However, prior to disposition in this matter, Defendants filed a Suggestion of Death as to Plaintiff on October 16,2014. (Dkt. No. 31). Defendants served the Suggestion of Death upon Plaintiffs next of kin andlor successor on October 21,2014. (Dkt. No. 35). The Magistrate Judge recommends dismissal because no further filings or documents have been filed on the Plaintiffs behalf. (Dkt. Nos. 37, 39). No objections have been filed to the R & R. Discussion 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, 270-71 (1976). The Court is required to make a de 1 novo determination of those portions of the R & R to which a specific objection has been made, and may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(I). Here, however, because no objection has been made, this Court "must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation. '" Diamondv. Colonial Life & Ace. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P 72 advisory committee note). Moreover, in the absence of specific objections to the R & R, the Court need not give any explanation for adopting the Magistrate Judge's analysis and recommendation. See Camby v. Davis, 718 F.2d 198,200 (4th Cir. 1983). In reviewing the record, this Court agrees with the recommendation of the Magistrate Judge and finds Plaintiff s next of kin and/or successor has failed to timely file a motion to substitute parties within ninety days of the date of service of the Suggestion of Death. See Fed. R. Civ. P. 25. Therefore, because a motion to substitute parties was not timely filed, Plaintiffs claim must be dismissed. Conclusion For the reasons stated above, the Court ADOPTS the R & R (Dkt. No. 39) as the Order of this Court and DISMISSES this action without prejudice. AND IT IS SO ORDERED. The Honorable . hard Mark Gergel United States District Court Judge February 2015 Charleston, South Carolina 2

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