Edison v. Bragg

Filing 8

REPORT AND RECOMMENDATION of Magistrate Judge Bristow Marchant. It is recommended that this action be dismissed, without prejudice, in accordance with Rule 41, Fed.R.Civ.P. Objections to R&R due by 8/28/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. Signed by Magistrate Judge Bristow Marchant on 8/14/2017. (cwhi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

Jermaine Aquarius Edison,
Petitioner,
V.

M. Travis Bragg, Warden,
Respondent.

) CIVIL ACTION NO. 9:17-1754-JFA-BM
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REPORT AND RECOMMENDATION
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This action has been filed by the Petitioner, prose, pursuant to 28 U.S.C. § 2241.
Petitioner, an inmate at FCI-Bennettsville, seeks certain habeas relief.
By Order dated July 11, 201 7, Petitioner was given an opportunity to provide the
necessary information and paperwork to bring the case into proper form for evaluation and possible
service of process. Petitioner was also specifically warned that failure to provide the necessary
information within the timetable set forth in the Order would subject his case to dismissal. See also,
e.g. Brockington v. South Carolina Dept. of Social Service, No. 17-1028, 2017 WL 1531633 (4 th
Cir. April 28, 2017) [Noting that prose Plaintiff should be provided an opportunity to amend his
complaint to cure defects prior to a dismissal]; Evans v. Richardson, No. 17-1144, 2017 WL
2294447 (4 th Cir. May 25, 2017) [same]; Breyan v. All Medical Staff, No. 17-6186, 2017 WL
2365232 (4 th Cir. May 31, 2017) [same]. The time to bring this case into proper form has now
lapsed, and Petitioner has failed to provide a response to the proper form Order, or indeed to contact
the Court in any way. Therefore, based on the foregoing, it is recommended that this action be
dismissed, without prejudice, in accordance with Rule 41, Fed.R.Civ.P. See Link v. Wabash R.R.

Co., 3 70 U.S. 626 (1962); Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989), cert. denied sub
nom, Ballard v. Volunteers of America, 493 U.S. 1084 (1990) [holding that district court's dismissal
following an explicit and reasonable warning was not an abuse of discretion].

The Clerk shall mail this Report and Recommendation to Petitioner at his last
known address. If the Petitioner satisfies the requirements for proceeding with this case as is
set forth in the proper form Order within the time set forth for filing objections to this Report
and Recommendation, the Clerk is directed to vacate this Report and Recommendation and
return this file to the undersigned for further handling. Brockington, 2017 WL 1531633.
However, if Petitioner fails to do so, then at the end of the time for filing objections, the Clerk shall
forward this Report and Recommendation to the District Judge for disposition. Ballard v. Carlson,
882 F.2d at 95 [Magistrate Judge's prior explicit warning that a recommendation of dismissal would
result from plaintiff failing to obey his order was proper grounds for the district court to dismiss suit
when plaintiff did not comply despite warning]. 1

August~' 201 7
Charleston, South Carolina

1

After a litigant has received one explicit warning as to the consequences of failing to timely
comply with an order of a Magistrate Judge, and has failed to respond to that order, the district court
may, under Fed.R.Civ.P. 41(6), dismiss the complaint based upon the litigant's failure to comply
with that court order. See Simpson v. Welch, 900 F.2d 33, 35-36 (4th Cir.1990); see also Ballard,
882 F.2d at 95-96 [holding that district court's dismissal following an explicit and reasonable
warning was not an abuse of discretion].

Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and
Recommendation with the District Judge. Objections must specifically identify the portions of the
Report and Recommendation to which objections are made and the basis for such objections. "[I]n
the absence ofa 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 (4 th Cir. 2005) (quoting
Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of
this Report and Recommendation. 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P.
6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by
mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402

Failure to timely file specific written objections to this Report and Recommendation will
result in waiver of the right to appeal from a judgment of the District Court based upon such
Recommendation. 28 U.S.C. § 636(6 )(1 ); Thomas v. Arn, 4 74 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).