Bryan v. Williams et al, No. 1:2018cv02892 - Document 74 (D.S.C. 2019)

Court Description: ORDER AND OPINION adopting in part and declining to adopt in part the 69 Report and Recommendation, and dismissing the Complaint without prejudice. Signed by Honorable Richard M. Gergel on 3/13/2019. (bgoo)

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Bryan v. Williams et al Doc. 74 IN THE UNITED ST ATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA AIKEN DIVISION La'Quan D. Bryan, Plaintiff, v. Charles Williams, Warden, et al., Defendants. ) ) ) ) ) ) ) ) ) ) Civil Action No. 1: 18-cv-2892-RMG ORDER AND OPINION ) Before the Court is the Report and Recommendation ("R & R") of the Magistrate Judge (Dkt. No. 69) recommending the Court dismiss Plaintiffs Complaint. For the reasons set forth below, the Court adopts in part and declines to adopt in part the R & R, and the Complaint is dismissed without prejudice. I. Background On October 25, 2018, Plaintiff filed a Complaint pursuant to 42 U.S.C. § 1983. (Dkt. No. 1.) Plaintiff alleges various claims related to his treatment while incarcerated. (Id.) On December 5 and 7, 2018, the Magistrate Judge issued orders regarding deadlines and denying Plaintiffs motion for injunctive relief. (Dkt. Nos. 37, 40.) The orders were mailed to Plaintiffs address of record at the time at the McCormick Correctional Institution. The orders were ultimately forwarded to Perry Correctional Institution, where Plaintiff was previously transferred, and Lee Correctional Institution, where it appears Plaintiff is currently housed. (Dkt. Nos. 67, 68.) However, both of those orders were returned as undeliverable. (Id.) Furthermore, Plaintiff was previously ordered to keep the Court advised of any change of address, yet has not provided any updated address. (Dkt. No. 7.) Plaintiff has not filed anything with this Court since December 10, 1 Dockets.Justia.com 2018. (Dkt. Nos. 44, 45.) Therefore, the Magistrate Judge issued a Report and Recommendation recommending dismissal for failure to prosecute. (Dkt. No. 69.) Plaintiff has not filed objections. II. Legal Standard A. Pro Se Pleadings This Court liberally construes complaints filed by prose litigants to allow the development of a potentially meritorious case. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a viable federal claim, nor can the Court assume the existence of a genuine issue of material fact where none exists. See Weller v. Dep 't ofSocial Services, 901 F.2d 387 (4th Cir. 1990). B. Report and Recommendation The Magistrate Judge makes only a recommendation to this Court that has no presumptive weight. The responsibility to make a final determination remains with the Court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U .S.C. § 636(b )(1 ). This Court must make a de novo determination of those portions of the R & R to which Plaintiff specifically objects. Fed. R. Civ. P. 72(b)(2). Where Plaintiff fails to file any specific objections, "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) (internal quotation omitted). "Moreover, in the absence of specific objections to the R & R, the Court need not give any explanation for adopting the recommendation." Wilson v. SC Dept a/Corr., No. 9:14-CV-4365- RMG, 2015 WL 1124701, at *1 (D.S .C. Mar. 12, 2015). See also Camby v. Davis, 718 F.2d 198, 2 200 (4th Cir.1983). Plaintiff did not file objections in this case, and the R & R is reviewed for clear error. III. Discussion The Plaintiff has not provided an updated mailing address and has not responded to any motions or orders since, at the latest, December 10, 2018. Plaintiffs failure to update his mailing address and the Court's lack of any ability to contact Plaintiff indicates an intent not to prosecute this case and the Complaint is therefore subject to dismissal. See Fed. R. Civ. P. 41(b) (district courts may dismiss an action if a plaintiff fails to comply with an order of the court); see also Ballardv. Carlson, 882 F.2d 93 , 95 (4th Cir. 1989) (dismissal appropriate when accompanied by a warning). Therefore, the Court adopts the Magistrate Judge' s recommendation to dismiss the Complaint for failure to prosecute. However, the Court determines that dismissal without prejudice is appropriate. IV. Conclusion For the foregoing reasons, the Court ADOPTS IN PART and DECLINES TO ADOPT IN PART the R & R of the Magistrate Judge (Dkt. No. 69), and the Complaint is DISMISSED WITHOUT PREJUDICE. AND IT IS SO ORDERED. United States District Court Judge March [i_, 2019 Charleston, South Carolina 3

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