Smith v. Holcomb

Filing 26

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant. This action is DISMISSED without prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). Signed by Honorable Timothy M Cain on 1/27/2015.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Cedrick Demond Smith, #332034,
Plaintiff,
vs.
Elizabeth Holcomb, Medical,
Defendant.

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Civil Action No. 9:14-2593-TMC

ORDER

Plaintiff Cedrick Demond Smith, a state prisoner proceeding pro se, filed this action
pursuant to 42 U.S.C. § 1983. In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule
73.02, D.S.C., this matter was referred to a magistrate judge for pretrial handling. Before the
court is the magistrate judge’s Report and Recommendation (“Report”), recommending that the
action be dismissed without prejudice for failure to prosecute. (ECF No. 21). Plaintiff was
advised of his right to file objections to the Report. (ECF No. 21 at 3). Plaintiff filed objections
on January 26, 2015. (ECF No. 23).
The Report has no presumptive weight and the responsibility to make a final
determination in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 27071 (1976). The court need not conduct a de novo review when a party makes only “general and
conclusory objections that do not direct the court to a specific error in the magistrate’s proposed
findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In that
case, the court reviews the Report only for clear error. See Diamond v. Colonial Life & Accident
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
In the report, the Magistrate Judge stated that if Plaintiff notified the court within the
time set forth for filing objections that he wished to continue with this case and provided a

response to the motion for summary judgment, the Clerk was to vacate this Report and return
this file to the Magistrate Judge for further handling. As set forth above, Plaintiff filed objections
to the Report and indicated he wished to continue with this action. (ECF No. 23). However, he
did not file a response to the summary judgment motion as directed. Pursuant to Federal Rule of
Civil Procedure 41(b), a district court may dismiss a complaint based upon the litigant’s failure
to comply with the court’s orders. See Simpson v. Welch, 900 F.2d 33, 35-36 (4th Cir. 1990). See
also Ballard v. Carlson, 882 F.2d 93. 95-96 (4th Cir. 1989) (holding that district court's
dismissal following an explicit and reasonable warning was not an abuse of discretion).
Accordingly, the court adopts the Magistrate Judge's Report (ECF No. 21) and
incorporates it herein. It is therefore ORDERED that this action is DISMISSED without
prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) and the
factors outlined in Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982). See also
Ballard, 882 F.2d 93.
IT IS SO ORDERED.
s/Timothy M. Cain
Timothy M. Cain
United States District Judge
January 27, 2015
Anderson, South Carolina

NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and 4
of the Federal Rules of Appellate Procedure.

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