Bey v. Southcarolina

Full title: Reginal Gerrill Toomer Bey, Plaintiff, v. State of South Carolina, North…

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

Date published: Oct 31, 2018

CIVIL ACTION NO. 2:18-1866-RMG-BM (D.S.C. Oct. 31, 2018)

Opinion

CIVIL ACTION NO. 2:18-1866-RMG-BM

10-31-2018

Reginal Gerrill Toomer Bey, Plaintiff, v. State of South Carolina, North Charleston Municipality Court, Magistrate Thaddeus Doughty, John Duffy, Sarah Fortier, and Clerk Angela Cartrette, Defendants.

Bristow Marchant United States Magistrate Judge

REPORT AND RECOMMENDATION

This action has been filed by the Plaintiff, pro se, alleging violations of his constitutional rights by the named Defendants.

By Order dated October 2, 2018, Plaintiff was given an opportunity to provide the necessary information and paperwork to bring the case into proper form for evaluation and possible service of process. Plaintiff was warned that failure to provide the necessary information within the timetable set forth in the Order would subject the case to dismissal. In a separate order filed that same day, Plaintiff was advised of potentially material defects in his pleading, and was given an opportunity to amend his Complaint to correct these deficiencies. See e.g. Brockington v. South Carolina Dept. of Social Service, No. 17-1028, 2017 WL 1531633 (4^th Cir. April 28, 2017) [Noting that pro se Plaintiff should be provided an opportunity to amend his complaint to cure defects prior to a dismissal]; Evans v. Richardson, No. 17-1144, 2017 WL 2294447 (4^th Cir. May 25, 2017) [same]; Breyan v. All Medical Staff, No. 17-6186, 2017 WL 2365232 (4^th Cir. May 31, 2017) [same]. Plaintiff was further specifically advised that if he failed to do so, a recommendation for dismissal would be entered.

The time to bring this case into proper form and to amend his Complaint has now lapsed, and Plaintiff has failed to provide a response to the proper form Order, amend his Complaint, or contact the Court in any way. Based on the foregoing, it is recommended that this action be dismissed, without prejudice, in accordance with Rule 41, Fed.R.Civ.P. See Link v. Wabash R.R. Co., 370 U.S. 626 (1962); Ballard v. Carlson, 882 F.2d 93, 95-96 (4^th Cir. 1989), cert. denied sub nom, Ballard v. Volunteers of America, 493 U.S. 1084 (1990) [holding that district court's dismissal following an explicit and reasonable warning was not an abuse of discretion].

The Clerk shall mail this Report and Recommendation to Plaintiff at his last known address. If the Plaintiff satisfies the requirements for proceeding with this case as is set forth in the proper form Order and Order to Amend within the time set forth for filing objections to this Report and Recommendation, the Clerk is directed to vacate this Report and Recommendation and return this file to the undersigned for further handling. Brockington, 2017 WL 1531633. However, if Plaintiff fails to do so, then at the end of the time for filing objections, the Clerk shall forward this Report and Recommendation to the District Judge for disposition. Ballard v. Carlson, 882 F.2d at 95 [Magistrate Judge's prior explicit warning that a recommendation of dismissal would result from plaintiff failing to obey his order was proper grounds for the district court to dismiss suit when plaintiff did not comply despite warning].¹

1 After a litigant has received one explicit warning as to the consequences of failing to timely comply with an order of a Magistrate Judge, and has failed to respond to that order, the district court may, under Fed.R.Civ.P. 41(b), dismiss the complaint based upon the litigant's failure to comply with that court order. See Simpson v. Welch, 900 F.2d 33, 35-36 (4th Cir.1990); see also Ballard, 882 F.2d at 95-96 [holding that district court's dismissal following an explicit and reasonable warning was not an abuse of discretion].

The parties are also referred to the Notice Page attached hereto.

/s/_________

Bristow Marchant

United States Magistrate Judge October 31, 2018
Charleston, South Carolina

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 (4^th 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

Post Office Box 835

Charleston, South Carolina 29402

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).