Garcia v. Colleton County Jail

Filing 14

ORDER adopting in part Report and Recommendations re 12 Report and Recommendation. This case is DISMISSED with prejudice and without issuance and service of process due to Plaintiffs failure to prosecute this case. Signed by Honorable Timothy M Cain on 9/20/2018.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Eduardo Garcia,

)
)
Plaintiff,
)
)
v.
)
)
Colleton County Jail,
)
)
Defendant.
)
____________________________________)

C/A No. 9:18-cv-01590-TMC
ORDER

Plaintiff, proceeding pro se, brought this action seeking relief pursuant to Title 42, United
States Code Section 1983. In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02,
D.S.C., this matter was referred to a magistrate judge for pretrial handling. On August 6, 2018,
the magistrate judge issued a Proper Form Order that alerted Plaintiff that he had twenty-one
days to pay his filing fee or return the Application to Proceed Without Prepayment of Fees and
Affidavit. (ECF No. 6 at 1). In that same order, the magistrate judge instructed Plaintiff to
provide necessary information and paperwork to bring the case into proper form for evaluation
and service. Id. at 1–4. The magistrate judge specifically warned Plaintiff that failure to bring the
case into proper form and pay the filing fee could result in dismissal of his case. Id. at 1.
Also on August 6, 2018, the magistrate judge issued an order that alerted Plaintiff of
various insufficiencies in his Complaint (ECF No. 1), and the order gave Plaintiff twenty-one
days to file an amended complaint to cure the insufficiencies identified therein. (ECF No. 7). The
magistrate judge specifically warned Plaintiff that failure to cure the insufficiencies would result
in a recommendation of dismissal. Id. at 8. Plaintiff did not file an amended complaint. Before
the court is the magistrate judge’s Report and Recommendation (“Report”), recommending that
this case be dismissed without prejudice and without issuance and service of process., or, in the
1

alternative, that this case be dismissed for failure to prosecute. (ECF No. 12 at 9). Plaintiff was
advised of his right to file objections to the Report. (ECF No. 12 at 10). However, Plaintiff did
not file any objections, and the time to do so has now run.
The Report has no presumptive weight and the responsibility to make a final
determination in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 270–
71 (1976). In the absence of objections, this court is not required to provide an explanation for
adopting the Report. 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 & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
After a careful and thorough review of the record under the appropriate standards, as set
forth above, the court adopts the Report (ECF No. 12) in part, to the extent that it is consistent
with this order and incorporates it herein by reference. The court finds that Plaintiff’s case is
subject to dismissal under Federal Rule of Civil Procedure 41(b) because Plaintiff has
demonstrated a failure to prosecute his claims. See Link v. Wabash R.R. Co., 370 U.S. 626
(1962). Furthermore, the court finds that sanctions less drastic than dismissal would not be

2

appropriate in this case.1 Accordingly, this case is DISMISSED with prejudice and without
issuance and service of process due to Plaintiff’s failure to prosecute this case.2
IT IS SO ORDERED.

/s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
September 20, 2018
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and 4
of the Federal Rules of Appellate Procedure.

1

As noted above, Plaintiff was specifically warned that failure to bring the case into proper form and pay his filing
fee or apply to proceed without prepayment could result in dismissal of his case. (ECF No. 6). Despite this warning,
Plaintiff did not comply. Furthermore, in addition to not bringing the case into proper form, Plaintiff was given the
opportunity to amend his Complaint to cure various deficiencies and was told that failure to do so would result in the
magistrate judge recommending dismissal of the case. (ECF No. 7). However, even after this warning, Plaintiff did
not file an amended complaint or cure the numerous deficiencies. Accordingly, the court finds that Plaintiff’s
noncompliance with the order found at docket entry 7 further demonstrates Plaintiff’s failure to prosecute this
action.

2

The court determines that dismissal with prejudice is appropriate because Plaintiff has ignored numerous court
orders. Plaintiff was specifically warned about the consequences of not complying with the court’s orders, and, yet,
Plaintiff did not comply.
3