Allah v. Hensley et al

Filing 37

ORDER AND OPINION adopting Report and Recommendations of Magistrate Judge Bristow Marchant. This action is DISMISSED with prejudice for lack of prosecution and for failure to comply with the Courts orders pursuant to Fed. R. Civ. P. 41(b). Signed by Honorable Bruce Howe Hendricks on 3/2/2017.(cwhi, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA Rateek Allah, ) Plaintiff, ) ) vs. ) ) Lt. Hensley and Lt. Shatto, ) ) Defendants. ) ___________________________________ ) Civil Action No. 9:16-459-BHH ORDER AND OPINION Plaintiff Rateek Allah (“Plaintiff”), proceeding pro se and in forma pauperis, filed this action pursuant to 42 U.S.C. § 1983. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), DSC, this matter was referred to United States Magistrate Judge Bristow Marchant for pre-trial proceedings and a Report and Recommendation. On February 8, 2017, the Magistrate Judge issued a Report and Recommendation which recommends that the case be dismissed without prejudice pursuant to Rule 4(m) for failure to make proper service or, in the alternative, with prejudice for failure to prosecute under Fed. R. Civ. P. 41(b). (ECF No. 35.) The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight. The responsibility for making a final determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court may accept, reject, or modify, in whole or in part, the Report and Recommendation or may recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). “The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,’ governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” See Link v. Wabash R.R. Co., 370 U.S. 626, 630–31 (1962). As well as inherent authority, this Court may sua sponte dismiss a case for lack of prosecution under Fed. R. Civ. P. 41(b). Id. at 630. Plaintiff filed no objections, and the time to do so expired on February 27, 2017. 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 and advisory committee’s note). After a careful review of the record, the applicable law, and the Report and Recommendation, the Court finds the Magistrate Judge’s recommendation to be proper. Accordingly, the Report and Recommendation is incorporated herein by reference and this action is DISMISSED with prejudice for lack of prosecution and for failure to comply with the Court’s orders pursuant to Fed. R. Civ. P. 41(b). IT IS SO ORDERED. /s/Bruce Howe Hendricks United States District Judge March 2, 2017 Greenville, South Carolina ***** NOTICE OF RIGHT TO APPEAL The parties are hereby notified that any right to appeal this Order is governed by Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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