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Ventura v. United States

United States District Court, D. South Carolina

September 18, 2018

German De Jesus Ventura, Plaintiff,
v.
United States of America, R.J. Stallings, Mrs. Rosario, Dr. Fonte, Mr. Finnerty, and Warden Bonita S. Mosely, Defendants.

          REPORT AND RECOMMENDATION

          SHIVA V. HODGES UNITED STATES MAGISTRATE JUDGE

         German De Jesus Ventura (“Plaintiff”), proceeding pro se and in forma pauperis, filed this action seeking compensatory damages pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims Act, 18 U.S.C. § 1346(b) (“FTCA”). On August 29, 2018, Defendants filed a motion for an extension of time within which to file dispositive motions. [ECF No. 43]. On August 30, 2018, the undersigned issued an order granting Defendants' motion, and the Clerk of Court's office mailed the order to Plaintiff. [ECF Nos. 44, 45]. On September 6, 2018, this case was reassigned to the Honorable Mary Geiger Lewis, United States District Judge, and the Clerk's office mailed Plaintiff a notice of the reassignment. [ECF No. 46, 47].

         On September 12, 2018, the court's August 30, 2018 order was returned as undeliverable. [ECF No. 48]. The returned envelope states “Return to Sender” and “Refused.” Id. On September 18, 2018, the notice of case reassignment was returned. [ECF No. 49]. The returned envelope states “Return to Sender, ” “Not Deliverable as Addressed, ” and “Unable To Forward.” Id. Plaintiff has previously been warned:

You are ordered to always keep the Clerk of Court advised in writing (United States District Court, 901 Richland Street, Columbia, South Carolina 29201) if your address changes for any reason, so as to assure that orders or other matters that specify deadlines for you to meet will be received by you. If as a result of your failure to comply with this order, you fail to meet a deadline set by this court, your case may be dismissed for violating this order. Therefore, if you have a change of address before this case is ended, you must comply with this order by immediately advising the Clerk of Court in writing of such change of address and providing the court with the docket number of all pending cases you have filed with this court. Your failure to do so will not be excused by the court.

[ECF No. 8]. Plaintiff has not advised the court of any change of address. As such, it appears to the court that he wishes to abandon this action.

         Based on the foregoing, it is recommended that this action be dismissed with prejudice, in accordance with Fed.R.Civ.P. 41(b). The Clerk is directed to send this Report and Recommendation to Plaintiff at his last known address. If Plaintiff notifies the court within the time set for filing objections to this Report and Recommendation that he wishes to continue with this case and provides a current address, 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.

         IT IS SO RECOMMENDED.

         The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”

         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 29201

         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, 7 ...


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