Foster v. Curry et al

Filing 72

ORDER adopting 69 Report and Recommendation of Magistrate Judge Bristow Marchant. This action is dismissed with prejudice pursuant to Rule 41(b) for failing to comply with an Order of this Court. Signed by Honorable Donald C Coggins, Jr on 01/08/2019. (egra, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Timothy Wayne Foster,

)
)
Plaintiff,
)
)
vs.
)
)
Capt. Carol Scott and Ofc. Marie Smith,
)
)
Defendants. )
_____________________________________ )

C/A No. 9:17-cv-2975-DCC

ORDER

In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), (D.S.C.),
this matter was referred to United States Magistrate Judge Bristow Marchant for pre-trial
proceedings. On November 28, 2018, Defendants filed a Motion for Judgment on the
Pleadings. ECF No. 65. On December 3, 2018, this Court issued an Order pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), in which Plaintiff was advised of the
summary judgment/dismissal procedure and the possible consequences if he failed to
respond adequately. ECF No. 66. Despite this explanation, Plaintiff did not respond to the
Motion.1
On December 17, 2018, the Magistrate Judge issued a Report and
Recommendation (“Report”) recommending dismissal of this action pursuant to Rule 41(b)
of the Federal Rules of Civil Procedure because Plaintiff failed to comply with an Order of
this Court. ECF No. 69. The Magistrate Judge advised Plaintiff of the procedures and
requirements for filing objections to the Report. Id. Plaintiff failed to file objections or

1

The Court notes that the Roseboro Order was returned as undeliverable;
however, it is Plaintiff’s responsibility to keep the Court apprised of his current address.
ECF Nos. 13, 68.

update his address and the time to do so has lapsed.
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. See Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination of any portion of the Report of the
Magistrate Judge to which a specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation made by the Magistrate Judge or recommit
the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b). The Court
will review the Report only for clear error in the absence of an objection. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the
absence of 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.” (citation omitted)).
After considering the record in this case, the applicable law, and the Report of the
Magistrate Judge, the Court finds no clear error and agrees with the Report’s
recommendation. Accordingly, the Court adopts and incorporates the Report by reference
in this Order. This action is DISMISSED with prejudice pursuant to Rule 41(b) for failing
to comply with an Order of this Court.
IT IS SO ORDERED.
s/ Donald C. Coggins, Jr.
United States District Judge
January 8, 2019
Spartanburg, South Carolina