Opinion
C. A. 1:22-cv-2165-JFA-SVH
01-10-2023
Moses Akhonaton Frasier, Petitioner, v. Stephen Duncan, Respondent.
ORDER
Joseph F. Anderson, Jr. United States District Judge
Petitioner, Moses Akhonaton Frasier, proceeding pro se, brings this action pursuant to 28 U.S.C. § 2254. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), the case was referred to the Magistrate Judge for pretrial proceedings.
On September 28, 2022, Respondent filed a motion for summary judgment. (ECF No. 12). By order dated September 29, 2022, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Petitioner was advised of the dismissal and summary judgment procedures and the possible consequences if he failed to respond adequately. (ECF No. 13).
Notwithstanding the specific warning and instructions set forth in the court's Roseboro order, Petitioner failed to respond to the motion. The Magistrate Judge then filed a second order on November 8, 2022, advising Petitioner that it appeared to the court that he was not opposing the motion and wished to abandon this action, and giving Petitioner an additional fourteen (14) days in which to file his response to the defendant's motion. (ECF No. 15). Petitioner was specifically warned that if he failed to respond, this action would be recommended for dismissal with prejudice for failure to prosecute. Despite this, Petitioner still failed to respond.
Thereafter, the Magistrate Judge assigned to this actionissued a thorough Report and Recommendation (“Report”). (ECF No. 17). Within the Report, the Magistrate Judge opines that this action should be dismissed with prejudice for lack of prosecution. The Report sets forth, in detail, the relevant facts and standards of law on this matter, and this Court incorporates those facts and standards without a recitation.
The Magistrate Judge's review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.). The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976).
Petitioner was advised of his right to object to the Report, which was entered on the docket on November 29, 2022. Id. The Magistrate Judge required Petitioner to file objections by December 13, 2022. Id. Petitioner failed to file objections or otherwise address the dispositive motion. Thus, this matter is ripe for review.
A district court is only required to conduct a de novo review of the specific portions of the Magistrate Judge's Report to which an objection is made. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b); Carniewski v. W. Virginia Bd. of Prob. & Parole, 974 F.2d 1330 (4th Cir. 1992). In the absence of specific objections to portions of the Magistrate's Report, this Court is not required to give an explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
Here, Petitioner has failed to raise any objections and therefore this Court is not required to give an explanation for adopting the recommendation. A review of the Report indicates that the Magistrate Judge correctly concluded that Petitioner has failed to respond and therefore his action is subject to dismissal for lack of prosecution.
After carefully reviewing the applicable laws, the record in this case, and the Report, this Court finds the Magistrate Judge's recommendation fairly and accurately summarizes the facts and applies the correct principles of law. Accordingly, this Court adopts the Magistrate Judge's Report and Recommendation and incorporates it herein by reference. (ECF No. 17). Therefore, this action is dismissed with prejudice. Consequently, any motions currently pending (ECF No. 12) are terminated as moot.
It is further ordered that a certificate of appealability is denied because Petitioner has failed to make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A prisoner satisfies this standard by demonstrating that reasonable jurists would find both that his constitutional claims are debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In the instant matter, the court finds that Petitioner has failed to make “a substantial showing of the denial of a constitutional right.”
IT IS SO ORDERED.