United States District Court, D. South Carolina
Derrick B. Woods, a/k/a Derrick Bernard Woods, # 197161, Plaintiff,
Officer Favor, Officer Hunter and Officer Shaw, Defendants.
REPORT AND RECOMMENDATION
BRISTOW MARCHANT, UNITED STATES MAGISTRATE JUDGE
pro se Plaintiff brought this action seeking relief
pursuant to Title 42, United States Code, Section 1983. On
March 6, 2017, the Defendants filed a motion to dismiss or
summary judgment, seeking dismissal of this case because
Plaintiff failed to exhaust his administrative remedies prior
to filing this lawsuit. As the Plaintiff is proceeding
pro se, a Roseboro Order was entered by the
Court on March 7, 2017, advising Plaintiff of the importance
of a dispositive motion and of the need for him to file an
adequate response. Plaintiff was specifically advised that if
he failed to file a properly supported response, 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 has failed to respond
to the motion, or to contact the Court in any way.
on the foregoing, the undersigned finds that Plaintiff meets
all of the criteria for dismissal under Chandler Leasing
Corp. . Lopez, 669 F.2d 919 (4th Cir.
1982). Accordingly, it is recommended that this
action be dismissed for lack of prosecution. See Davis v.
Williams, 588 F.2d 69, 70 (4th Cir. 1978); Rule 41(b),
Fed.R.Civ.P. Since the Defendants' stated ground for
dismissal of Plaintiff's case is failure to exhaust, this
dismissal should be without prejudice.
Clerk shall mail this Report and Recommendation to Plaintiff
at his last known address. If the Plaintiff notifies the
Court within the time set forth for filing objections to this
Report and Recommendation that he wishes to continue with
this case and provides a response to the motion for summary
judgment, 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. Ballard v.
Carlson, 882 F.2d 93, 95 (4th Cir. 1989),
cert. denied sub nom, Ballard v. Volunteers of
America, 493 U.S. 1084 (1990) [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].
parties are referred to the Notice Page attached hereto.
of Right to File Objections to Report and
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).
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
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
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, 7 ...