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Clark v. Waltower

United States District Court, D. South Carolina

August 28, 2018

Blake Marcell Clark, Plaintiff,
v.
J. Waltower; D. Drasher; T. Patten; B. Bethman, Defendants.

          REPORT AND RECOMMENDATION

          PAIGE J. GOSSETT JUDGE

         The plaintiff, Blake Marcell Clark, a self-represented state pretrial detainee, filed this action pursuant to 28 U.S.C. § 1915 and § 1915A. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). By order dated March 8, 2018, the court provided Plaintiff the opportunity to file an amended complaint to correct deficiencies identified by the court that would warrant summary dismissal of the Complaint pursuant to 28 U.S.C. § 1915 and § 1915A. (ECF No. 10.) In a simultaneously issued order, Plaintiff was provided an opportunity to submit the documents necessary to bring the case into proper form for evaluation and possible service of process. (ECF No. 9.) Plaintiff was warned that failure to provide the necessary information within a specific time period would subject the case to dismissal. Plaintiff did not respond to either order and, on April 6, 2018, the assigned magistrate judge recommended summary dismissal of the Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1) for Plaintiff's failure to state a claim upon which relief can be granted, and alternatively, for Plaintiff's failure to prosecute and comply with an order of the court. (ECF No. 15.)

         On May 1, 2018, Plaintiff filed objections to the April 6 Report and Recommendation indicating he needed an extension of time to comply with the court's March 8 order. (ECF No. 19.) Plaintiff also filed an Amended Complaint and the documents required for service of process. (ECF Nos. 20 & 22.) The assigned district judge vacated the Report and Recommendation and referred this action to the assigned magistrate judge because Plaintiff's filings indicated he wished to proceed with this action. (ECF No. 25.)

         Consequently, on July 30, 2018, the assigned magistrate judge again issued an order warning Plaintiff that his Amended Complaint was subject to summary dismissal for the same reasons stated in the court's March 8 order, and also that he still had not fully complied with the court's directive to file the documents necessary for the issuance and service of process. (ECF No. 28.) The July 30 order again warned Plaintiff that his failure to comply with the order would subject this matter to dismissal. The deadline given to Plaintiff to respond to this order lapsed on August 17, 2018, and, as of the date of this order, the court has not received a response from Plaintiff.

         Accordingly, the court recommends this matter be summarily dismissed for the reasons stated in the court's April 6 Report and Recommendation. As indicated above, Plaintiff has failed to fully comply with three orders issued by this court and has failed to provide the necessary information and paperwork to accomplish review and possible service of process under 28 U.S.C. § 1915 and § 1915A.

         III. Conclusion

         Accordingly, the court recommends that the Amended Complaint be summarily dismissed without prejudice and without issuance and service of process.

         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 (4th 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
901 Richland Street
Columbia, South Carolina ...

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