Wright v. Deputy Chief Franklin Rocky Burke, Jr. et al, No. 2:2023cv00159 - Document 28 (D.S.C. 2023)

Court Description: ORDER and OPINION RULING ON REPORT AND RECOMMENDATION: The Court adopts the R&R (Dkt. No. 24) as the order of the Court and dismisses this action pursuant to Fed. R. Civ. P. 41(b). AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 8/16/23. (ltap, )

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Wright v. Deputy Chief Franklin Rocky Burke, Jr. Date et al 2:23-cv-00159-RMG Filed 08/16/23 Entry Number 28 Page 1 of 2 Doc. 28 IN THE UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION Fernando Javier Wright, Civil Action No. 2:23-cv-00159-RMG Plaintiff, v. ORDER AND OPINION Deputy Chief Franklin Rocky Burke, Jr. and Folly Beach Department of Public Safety (D.P.S.), Defendants. Before the Court is the Report & Recommendation (“R&R”) of the Magistrate Judge recommending that this action be dismissed for lack of prosecution. (Dkt. No. 24). For the reasons set forth below, the Court adopts the R&R as the order of the Court and dismisses this action pursuant to FED. R. CIV. P. 41(b). As detailed in the R&R, Plaintiff, proceeding pro se, brought this case pursuant to 42 U.S.C. § 1983. On April 5, 2023, the Magistrate Judge issued a Proper Form Order, advising Plaintiff to bring his case in the proper form and that he must “always keep the Clerk of Court advised in writing . . . if [his] address changes for any reason, so as to assure that orders or other matters that specify deadlines for you to meet will be received by you.” (Dkt. No. 6 at 2) (emphasis in original). On June 1, 2023, Defendants moved to dismiss Plaintiff’s complaint for failure to state a claim. (Dkt. No. 17). On June 2, 2023, the Magistrate Judge issued a Roseboro order advising Plaintiff of the dismissal procedures and the consequences if he failed to adequately respond to Defendants’ motion. (Dkt. No. 20). “The Roseboro order was returned as undeliverable on June 14, 2023, with a note indicating that Plaintiff had been released from the detention center on April 21, 2023.” (Dkt. No. 24 at 2). The deadline for Plaintiff to respond to Defendants’ motion was 1 Dockets.Justia.com 2:23-cv-00159-RMG Date Filed 08/16/23 Entry Number 28 Page 2 of 2 July 3, 2023. Accordingly, the Magistrate Judge recommends dismissing this action for lack of prosecution. (Id.). The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility for making a final determination remains with this Court. See Mathews v. Weber, 423 U.S. 261, 270–71 (1976). This Court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made. Additionally, 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). Where the 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.” See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation omitted). Because Plaintiff did not file objections to the R&R, it is reviewed for clear error. The Court finds that the Magistrate Judge ably addressed the issues and correctly concluded, under the pertinent case law, that Plaintiff’s case should be dismissed pursuant to Rule 41(b) for failure to prosecute and failure to comply with the Court’s orders. See Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989). Accordingly, the Court adopts the R&R (Dkt. No. 24) as the order of the Court and dismisses this action pursuant to Fed. R. Civ. P. 41(b). AND IT IS SO ORDERED. s/ Richard Mark Gergel Richard M. Gergel United States District Judge August 16, 2023 Charleston, South Carolina 2

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