United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
RICHARD MARK GERGEL JUDGE
the Court is the Report and Recommendation ("R &
R") of the Magistrate Judge (Dkt. No. 19.) recommending
the Court dismiss this case. For the reasons set below, the
Court adopts the R & R as the order of the Court and the
case is dismissed.
8, 2018, Plaintiff Moses Beaufort filed a Complaint under the
Federal Tort Claims Act against Ralph H. Johnson VA Medical
Center. (Dkt. No. 1.) On August 14, 2018, the Magistrate
Judge gave Plaintiff twenty-one days to bring his complaint
into proper form. (Dkt. No. 8.) Plaintiff substantially
complied with the order, and filed an amended complaint on
August 22, 2018. (Dkt. Nos. 10, 16.) The Magistrate Judge
directed the Clerk to issue a summons to the Plaintiff for
service. (Dkt. No. 16.) On January 18, 2019, the Magistrate
Judge issued an R&R and advised Plaintiff to provide the
Court with proof of service on the Defendant, or present good
cause for his failure to do so, within ten days and
recommended dismissing the case if Plaintiff failed to do so.
(Dkt. No. 19.) This Court extended the period for another ten
days on January 29, 2019. (Dkt. No. 24.) As of the date of
this order, Plaintiff failed to provide the Court with proof
of service on the Defendant or present good cause for such
Pro Se Pleadings
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 7 of
Social Services, 901 F.2d 387 (4th Cir. 1990).
Report and Recommendation
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 Plaintiff specifically objects. Fed.R.Civ.P.
72(b)(2). Where Plaintiff 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). Plaintiff did not file objections
in this case, and the R & R is reviewed for clear error.
Magistrate Judge issued an order authorizing service upon
receipt of Plaintiffs amended complaint. The order
specifically advised Plaintiff that he is responsible for
service of process. Federal Rule of Civil Procedure Rule 4(m)
states that "[i]f a defendant is not served within
ninety (90) days after the complaint is filed, the court..
.must dismiss the action without prejudice against that
defendant or order that service be made within a specified
time." The time for service began to run on October 16,
2018, and the ninety (90) day period for service provided by
Rule 4(m) expired on January 14, 2019. The Magistrate granted
Plaintiff an additional ten days to submit proof of service
after the filing of the R & R on January 18, 2019,
warning Plaintiff that the failure to properly serve the
complaint would result in this case being dismissed. (Dkt No.
19.) On January 29, 2019, this Court granted the Plaintiff an
additional ten days to submit proof of service. (Dkt. No.
24.) Plaintiff failed to provide the Court with proof of
service or present good cause to the Court for failure to
serve the Defendant. Therefore, the case is dismissed.
See Fed.R.Civ.P. 4(m).
foregoing reasons, the R & R of the Magistrate Judge
(Dkt. No. 19.) is ADOPTED as the Order of
the Court, and Plaintiffs case is DISMISSED WITHOUT