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Carruthers v. Joyner

United States District Court, D. South Carolina, Charleston Division

November 5, 2018

Alan Bruce Carruthers, Petitioner,
v.
Aaron Joyner, Respondent.

          ORDER AND OPINION

          Richard Mark Gergel, United States District Court Judge

         Before the Court is the Report and Recommendation ("R & R") of the Magistrate Judge (Dkt. No. 12) recommending the Court dismiss Petitioner's Petition for a Writ of Habeas Corpus ("Petition"). For the reasons set forth below, the Court adopts the R & R as the order of the Court and the Petition is dismissed.

         I. Background

         On August 13, 2018, Petitioner Alan Bruce Carruthers filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Dkt. No. 1.) On August 17, 2018, the Magistrate Judge gave Petitioner twenty-one days to bring his Petition into proper form.[1] (Dkt. No. 5.) The Magistrate Judge warned that the case was subject to dismissal if Petitioner did not bring his case into proper form within the period required by the order. (Dkt. No. 5.) After Petitioner failed to comply with the first order, the Magistrate Judge issued a second order on September 10, 2018, and gave Petitioner an additional twenty-one days to bring his Petition into proper form.[2] (Dkt. No. 8). Petitioner did not respond to the second order. The Magistrate Judge recommended dismissing the Petition without prejudice. (Dkt. No. 12).

         II. Legal Standard

         A. Pro Se Pleadings

         This Court liberally construes complaints filed by pro se litigants to allow the development of a potentially meritorious case. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a viable federal claim, nor can the Court assume the existence of a genuine issue of material fact where none exists. See Weller v. Dep't of Social Services, 901 F.2d 387 (4th Cir. 1990).

         B. Report and Recommendation

         The Magistrate Judge makes only a recommendation to this Court that has no presumptive weight. The responsibility to make a final determination remains with the Court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). This Court must make a de novo determination of those portions of the R & R Petitioner specifically object. Fed.R.Civ.P. 72(b)(2). Where Petitioner fails to file any specific objections, "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 & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation omitted). "Moreover, in the absence of specific objections to the R & R, the Court need not give any explanation for adopting the recommendation." Wilson v. S. C. Dept of Corr., No. 9:14-CV-4365-RMG, 2015 WL 1124701, at *1 (D.S.C. Mar. 12, 2015). See also Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983)). Petitioner did not file objections in this case, and the R & R is reviewed for clear error.

         III. Discussion

         The Magistrate Judge issued two orders, each providing Petitioner with twenty-one (21) days to bring their case into proper form. The Petitioner failed to respond to either order or provide the items necessary to bring the case into proper form. Petitioner's lack of response to the orders and failure to bring his case into proper form indicates an intent not to prosecute this case and the Petition is therefore subject to dismissal. See Fed.R.Civ.P. 41(b) (district courts may dismiss an action if a plaintiff fails to comply with an order of the court); see also Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (dismissal appropriate when accompanied by a warning). Therefore, the Court adopts the Magistrate Judge's R & R and dismisses the Petition.[3]

         IV. Conclusion

         For the foregoing reasons, the R & R of the Magistrate Judge (Dkt. No. 12) is ADOPTED as the order of the Court, and Petitioner's ...


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