Wakefield v. S.C. Dept. of Corrections et al, No. 9:2020cv00132 - Document 32 (D.S.C. 2020)

Court Description: ORDER- The Court adopts Magistrate Judge Molly H. Cherry's findings and recommendations in the 29 Report and Recommendation which is incorporated herein by reference. The Court dismisses this action for failure to prosecute and comply with court orders under Federal Rule of Civil Procedure 41(b). Accordingly, Defendants' 25 motion to dismiss or for summary judgment is denied as moot. Signed by Honorable Timothy M Cain on 09/29/2020.(cpeg, )

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Wakefield v. S.C. Dept. of Corrections et al Doc. 32 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA BEAUFORT DIVISION Antonio Tykeish Wakefield, ) ) Plaintiff, ) ) vs. ) ) S.C. Dept. of Corrections, Jason Perks, ) and Lt. J. Thomas, ) ) Defendants. ) _________________________________) Civil Action No. 9:20-cv-132-TMC ORDER Plaintiff Antonio Tykeish Wakefield, a state prisoner proceeding pro se and in forma pauperis, filed this action pursuant to 42 U.S.C. § 1983. (ECF Nos. 1, 9). In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), this matter was referred to a magistrate judge for all pretrial proceedings. On July 20, 2020, Defendants filed a motion to dismiss and for summary judgment. (ECF No. 25). The magistrate judge subsequently issued an order on July 21, 2020, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of Defendants’ motion and the possible consequences if Plaintiff failed to adequately respond. (ECF No. 27). The Roseboro order was mailed to Plaintiff on July 21, 2020, (ECF No. 28), and was not returned to the court as undeliverable. Despite the warning in the Roseboro order, Plaintiff filed no response to the Defendants’ motion. Now before the court is the magistrate judge’s Report and Recommendation (“Report”), recommending that the court dismiss the case for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). (ECF No. 29). The Report was mailed to Plaintiff on September 10, 2020 at the address he provided the court and has not been returned as undeliverable. (ECF No. 30). Therefore, Plaintiff is presumed to have received the Report. Plaintiff was advised of his right to 1 Dockets.Justia.com file specific objections to the Report, (ECF No. 29 at 4), but failed to do so. The time for Plaintiff to object to the Report has now expired, and this matter is ripe for review. The magistrate judge’s recommendation has no presumptive weight, and the responsibility for making a final determination remains with the United States District Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). Nevertheless, “[t]he district court is only required to review de novo those portions of the report to which specific objections have been made, and need not conduct de novo review ‘when a party makes general and conclusory objections that do not direct the court to a specific error in the magistrate judge’s proposed findings and recommendations.’” Farmer v. McBride, 177 Fed. App’x 327, 330–31 (4th Cir. April 26, 2006) (quoting Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982)). The court may accept, reject, or modify, in whole or in part, the recommendation made by the magistrate judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1). However, “[i]n the absence of specific objections to the Report and Recommendation, this Court is not required to give any explanation for adopting the recommendation.” White v. Stacher, C/A No. 6-05-1737-GRA-WMC, 2005 WL 8163324, at *1 (D.S.C. Aug. 29, 2005) (citing Camby v. Davis, 718 F.2d 198, 199–200 (4th Cir. 1983)). Thus, having reviewed the Report and finding no clear error, the court agrees with, and wholly adopts, the magistrate judge’s findings and recommendations in the Report (ECF No. 29), which is incorporated herein by reference. Therefore, the court DISMISSES this action for failure to prosecute and comply with court orders under Federal Rule of Civil Procedure 41(b). Accordingly, Defendants’ motion to dismiss or for summary judgment (ECF No. 25) is DENIED as moot. IT IS SO ORDERED. s/Timothy M. Cain United States District Judge 2 Anderson, South Carolina September 29, 2020 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. 3

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