Jones v. Blocker et al

Filing 34

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant. Accordingly, this action is dismissed without prejudice for lack of prosecution pursuant to Rule 41(b). Signed by Honorable Joseph F Anderson, Jr on 7/10/2018.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA

Delano Jones #21872-171,

C/A No. 9:17-2295-JFA
Plaintiff,

vs.
ORDER
Rex Blocker, M.D.; V. Eneje, MLP; Aimee
Ackley, AHSA; Jeffrey Eiben, EMT; and
Randolph Steele, OD,
Defendants.

Delano Jones (Plaintiff), proceeding pro se and in forma paperis, brings this action
against Rex Blocker, V. Eneje, Aimee Ackley, Jeffrey Eiben, and Randolph Steele
(Defendants) alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983.
The Magistrate Judge assigned to this action 1 has prepared a Report and
Recommendation wherein he suggests that this court should dismiss the action pursuant to
Rule 41(b) of the Federal Rules of Civil Procedure for lack of prosecution. The Report sets
forth in detail the relevant facts and standards of law on this matter, and the court
incorporates such without a recitation.

1

The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule
73.02(B)(2)(d) (D.S.C.). 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 (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
to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

1

Defendants filed a motion to dismiss or in the alternative a motion for summary
judgment. (ECF No. 27). On May 3, 2018, the Magistrate Judge issued an order pursuant
to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) notifying Plaintiff of the summary
dismissal procedure and possible consequences if Plaintiff failed to adequately respond to
the motion to dismiss. Plaintiff did not respond to Defendants’ motion.
On June 13, 2018, the Magistrate Judge issued a Report and Recommendation
(Report) where the Magistrate Judge recommended that the action be dismissed without
prejudice for lack of prosecution. (ECF No. 30). The Report alerted Plaintiff of the
following:
The Clerk shall mail this Report and Recommendation to Plaintiff at his
last known address. If the Plaintiff notifies the Court within the time set
forth for filing objections to this Report and Recommendation that he
wishes to continue with this case and provides a response to the motion
for summary judgment, the Clerk is directed to vacate this Report and
Recommendation and return this file to the undersigned for further
handling.

(ECF No. 30 p. 2) (emphasis in original).
Plaintiff was also advised of his right to file objections to the Report. (ECF No. 30
p. 3). However, Plaintiff did not notify the court that he wished to continue with this case.
Plaintiff did not file a response to Defendants’ Motion nor did he file objections to the
Report. The time within which to do so has now expired.
In the absence of specific objections to the Report of the Magistrate Judge, this court
is not required to give any explanation for adopting the recommendation. See Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983). The court must “only satisfy itself that there is
2

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).
The Magistrate Judge has allowed Plaintiff ample time to respond to the court’s
orders and Defendants’ motion yet Plaintiff has failed to do so. A review of the docket
reveals that Plaintiff has not notified the Clerk of any address change, nor has any mail
been returned to the Clerk from the U.S. Postmaster.
After carefully reviewing the applicable laws and the record in this case, this court
accepts the Magistrate Judge’s Report and finds that it fairly and accurately summarizes
the facts and applies the correct principles of law. Accordingly, this action is dismissed
without prejudice for lack of prosecution pursuant to Rule 41(b). The Clerk is directed to
terminate all pending motions in this case.

IT IS SO ORDERED.

July 10, 2018
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

3