Hayes v. Bryant

Full title: LARRY HAYES, Plaintiff, v. GARRY BRYANT, WALLY HAMPTON, KAREN BLACK, JOEY…

Court: United States District Court, D. South Carolina

Date published: May 12, 2008

Civil Action No. 0:07-3894-MBS-BM (D.S.C. May. 12, 2008)

Opinion

Civil Action No. 0:07-3894-MBS-BM.

May 12, 2008

REPORT AND RECOMMENDATION

BRISTOW MARCHANT, Magistrate Judge

The Plaintiff has filed this action, pro se, seeking relief pursuant to 42 U.S.C. § 1983. Plaintiff, a detainee at the Anderson County Detention Center, alleges violations of his constitutional rights by the named Defendants. The Defendants filed a motion for summary judgment on March 19, 2008, pursuant to Rule 56, Fed.R.Civ.P.. As the Plaintiff is proceeding pro se, a Roseboro order was entered by the Court on March 20, 2008, advising Plaintiff of the importance of a motion for summary judgment and of the need for him to file an adequate response. Plaintiff was specifically advised that if he failed to respond adequately, the Defendants' motion may be granted, thereby ending his case.

However, notwithstanding the specific warning and instructions as set forth in the Court's Roseboro order, the Plaintiff failed to respond to the motion. As such, it appears to the Court that he does not oppose the motion and wishes to abandon this action. Nevertheless, as the Plaintiff is proceeding pro se, the court filed a second order on April 28, 2008, giving the Plaintiff an additional ten (10) days in which to file his response to the Defendants' motion for summary judgment. The Plaintiff was specifically advised that if he failed to respond, this action would be recommended for dismissal with prejudice for failure to prosecute. Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978), Rule 41(b) Fed.R.Civ.P.

The Plaintiff still did not respond, and has therefore failed to indicate that he wishes to proceed with this case or to prosecute this matter in any way. Accordingly, it is recommended that this action be dismissed with prejudice for lack of prosecution.

The parties are referred to the Notice Page attached hereto.

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 Court Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. 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 Acc. Ins. Co., 416 F.3d 310 (4^th Cir. 2005).

Specific written objections must be filed within ten (10) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The time calculation of this ten-day period excludes weekends and holidays and provides for an additional three (3) days for filing by mail. Fed.R.Civ.P. 6(a) (e). Filing by mail pursuant to Fed.R.Civ.P. 5 may be accomplished by mailing objections to:

Larry W. Propes, 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); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985).