United States District Court, D. South Carolina
Brett J. Catoe a/k/a Brett James Catoe, Plaintiff,
Warden Sharp; Warden Truesdale; NFN Brown; and Capt. Williams, Defendants.
F. Anderson, Jr. United States District Judge.
pro se plaintiff is an inmate with the South
Carolina Department of Corrections (“SCDC”). He
brought this action pursuant to 42 U.S.C. § 1983
alleging various violations of his constitutional rights by
Magistrate Judge assigned to this action has prepared a
Report and Recommendation wherein he suggests that this court
should dismiss the action pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure for failure to comply with
the court's orders.
Report sets forth in detail the relevant facts and standards
of law on this matter, and the court incorporates such
without a recitation.
order of November 14, 2017 (ECF No. 9), the plaintiff was
advised by the Magistrate Judge that his case was not in
proper form and he was provided instructions and forms to
bring the case into proper form for judicial screening. After
the time expired and no response was received from the
plaintiff, the Magistrate Judge entered a Report and
Recommendation (ECF No. 11) suggesting that the district
court dismiss the action without prejudice for failure to
bring the case into proper form.
Report and Recommendation, the Magistrate Judge also advised
the plaintiff that if he satisfied the requirements for
proceeding with this case as was set forth in the proper form
Order within the time set forth for filing objections to this
Report and Recommendation, the Clerk would be directed to
vacate the Report and Recommendation and return the file to
Magistrate Judge for further handling. The Magistrate Judge
also noted in his Report that if the plaintiff failed to do
so, then at the end of the time for filing objections, the
Clerk would forward the Report and Recommendation to the
District Judge for disposition.
appears from the docket that on or about December 15, 2017,
the plaintiff submitted the necessary service forms to the
Clerk of Court. Thereafter, the Magistrate Judge issued
orders (ECF Nos. 15, 20, 21) vacating the Report and
Recommendation, granting in forma pauperis status, and
authorizing service of process on the defendants.
December 19, 2017, the Magistrate Judge issued another Report
and Recommendation (ECF No. 22) opining that the
plaintiff's motion for a temporary restraining order be
denied without prejudice. After the objection deadline passed
with no response from plaintiff, the court reviewed and
adopted the Magistrate Judge's report and the motion for
a temporary restraining order was denied (ECF No. 26).
April 2, 2018, the defendants filed a motion to dismiss. An
order was issued pursuant to Roseboro v. Garrison,
528 F.2d 309 (4th Cir. 1975) advising the plaintiff that he
had 31 days to respond to the motion to dismiss. That order,
mailed to the plaintiff at his last known address at Lieber
Correctional Institution, was returned to the Clerk of Court
by the U.S. Postmaster on April 13, 2018, with the envelope
marked “Return to sender, refused, unable to forward,
Lancaster Co. Community Supervision.” No. change of
address has been filed on the docket by the plaintiff.
Magistrate Judge's Report and Recommendation now before
this court (ECF No. 35), the Magistrate Judge suggests that
despite the earlier warnings to the plaintiff to keep the
Clerk's Office informed in writing if his address
changes, the plaintiff has failed to comply with the
court's orders and instructions and the court nor the
defendants have any means of contacting the plaintiff.
Therefore, the Magistrate Judge recommends dismissal, with
prejudice, in accordance with Rule 41(b) of the Federal Rules
of Civil Procedure.
Magistrate Judge also notes in the Report that if the
plaintiff notifies the court within the time set for filing
objections thereto, the Clerk is directed to vacate the
Report and Return the file to the Magistrate Judge for
further handling. And, if no objections are filed, the Clerk
is directed to forward the Report to the district judge for
plaintiff has not filed any objections or response to the
Report, which was entered on the docket on March 13, 2018
(ECF No. 35), and the time within which to do so has expired.
In the absence of specific objections to the Report of the
Magistrate Judge, this court is not required to give any
explanation for adopting the recommendation. See Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983). The court 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, 315 (4th Cir. 2005).
Magistrate Judge has allowed the plaintiff ample time and
opportunities to respond to the Magistrate Judge's orders
and the plaintiff has failed to do so. It appears that the
plaintiff meets all of the criteria for dismissal under Rule
41(b). See Ballard v. Carlson, 882 F.2d 93 (4th Cir.
carefully reviewing the applicable laws and the record in
this case, this court accepts the Magistrate Judge's
Report and Recommendation and finds that the Report fairly
and accurately ...