Witherspoon v. Dubose et al

Filing 27

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant. It is the judgment of the Court that Plaintiffs action is Plaintiffs action is DISMISSED WITHOUT PREJUDICE and without issuance of process. Signed by Honorable Mary G Lewis on 7/29/2015.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
JARODE JERMAINE WITHERSPOON,
Plaintiff,

§
§
§
vs.
§ CIVIL ACTION NO. 9:14-2850-MGL-BM
§
MR. DUBOSE, the head of mental health over §
all prison; MS. S. ROBERTS, mental health
§
counselor, STOP; MR. CAPTAIN JONES,
§
over Saluda Unit; and MS. L.T., over
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Saluda Unit, STOP
§
Defendants.
§
ORDER ADOPTING THE REPORT AND RECOMMENDATION
AND DISMISSING THE ACTION
WITHOUT PREJUDICE AND WITHOUT SERVICE OF PROCESS
This is a 42 U.S.C. § 1983 action. 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 to the Court that Plaintiff’s action be dismissed without prejudice and without issuance
of process. 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. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with the Court.
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 June 24, 2015, but Plaintiff failed to file any
objections.* “[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).
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
the Court that Plaintiff’s action is Plaintiff’s action is DISMISSED WITHOUT PREJUDICE and
without issuance of process.

*

The Court notes that Plaintiff’s copy of his Report was returned to the Clerk on July 1,
2015, marked “RELEASED: LEFT NO ADDRESS” ECF No. 26. Therefore, Plaintiff is
evidently unaware of the Report. The Court observes, however, that the Magistrate Judge issued
the following order to Plaintiff on December 12, 2014: “You are ordered to always keep the
Clerk of Court advised in writing (Post Office Box 835, Charleston, South Carolina 29402) if
your address changes for any reason, so as to assure that orders or other matters that specify
deadlines for you to meet will be received by you. If as a result of your failure to comply with this
order, you fail to meet a deadline set by this court, your case may be dismissed for violating
this order. Therefore, if you have a change of address before this case is ended, you must
comply with this order by immediately advising the Clerk of Court in writing of such change of
address and providing the court with the docket number of all pending cases you have filed with
this court. Your failure to do so will not be excused by the court.” ECF No. 8:2-3. Plaintiff has
obviously failed to follow the Court’s December 12, 2014, order.
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IT IS SO ORDERED.
Signed this 29th day of July, 2015, in Columbia, South Carolina.
s/ Mary G. Lewis
MARY G. LEWIS
UNITED STATES DISTRICT JUDGE

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NOTICE OF RIGHT TO APPEAL
Plaintiff is hereby notified of the right to appeal this Order within thirty days from the date
hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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