Opinion
C. A. : 1:24-1318-HMH-SVH
07-01-2024
Cristian Gongora-Viera, Petitioner, v. FCI Bennettsville Warden Joseph, Respondent.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
Cristian Gongora-Viera (“Petitioner”), proceeding pro se, filed this action on March 19, 2024. [ECF No. 1]. On April 15, 2024, the undersigned issued an order authorizing service of process. [ECF No. 6]. Respondent filed a motion to dismiss on June 3, 2024, and the court issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising him of the importance of the motion and of the need for him to file an adequate response by July 8. [ECF No. 10]. On June 28, 2024, the court's Roseboro order was returned as undeliverable. [ECF No. 12]. The returned envelope states “Return to Sender” and indicates “Individual No Longer at this Address.” Id. at 12-1. Petitioner has failed to keep the court apprised of his address, and as a result, neither the court nor the Respondent has any means of contacting him concerning his case.
Based on the foregoing, it is recommended that this action be dismissed with prejudice, in accordance with Fed.R.Civ.P. 41(b). The Clerk is directed to send this Report and Recommendation to Petitioner at his last known address. If Petitioner notifies the court within the time set for filing objections to this Report and Recommendation that he wishes to continue with this case and provides a current address, the Clerk is directed to vacate this Report and Recommendation and return this file to the undersigned for further handling. If, however, no objections are filed, the Clerk shall forward this Report and Recommendation to the district judge for disposition.
If the district judge accepts this recommendation, Respondent's motion to dismiss [ECF No. 9] will be rendered moot.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n 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 & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).