United States District Court, D. South Carolina, Rock Hill Division
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge
the Court is the Report and Recommendation ("R &
R") of the Magistrate Judge (Dkt. No. 62) recommending
that Plaintiffs claim be dismissed. For the reasons set forth
below, the Court adopts the R & R as the Order of the
Court and dismisses Plaintiffs claim with prejudice.
Julio Rodriquez is an incarcerated person at the Federal
Correctional Institution ("FCI") in Estill, South
Carolina. He brings this action pro se to allege
that FCI employees violated his constitutional rights under
Bivens v. Six Unknown Named Agents of the Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). The Court previously
declined to sua sponte dismiss Plaintiffs claim as
untimely to allow the parties an opportunity to fully brief
the legal and factual issues. (Dkt. No. 14.) Defendants then
moved to dismiss the claim under Rule 12 or Rule 56. (Dkt.
No. 49.) Plaintiff filed neither a response in opposition nor
objections to the R & R.
Magistrate Judge makes a recommendation to the Court that has
no presumptive weight and the responsibility to make a final
determination remains with the Court. 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)(C). Where there are
no objections to the R & R, the Court reviews the R &
R to "only satisfy itself that there is no clear error
on the face of the record in order to accept the
recommendation." Fed.R.Civ.P. 72 advisory
committee's note; see also Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983) ("In the absence of
objection ... we do not believe that it requires any
Magistrate Judge addressed the issues and correctly concluded
that this case may be dismissed pursuant to Rule 41. After
Defendants moved to dismiss, the Magistrate Judge issued a
Roseboro Order notifying Plaintiff of the motion and
advising him of the risk of dismissal if he failed to oppose.
(Dkt. No. 50.) Plaintiff was granted two extensions (Dkt.
Nos. 55, 59) and did not file a response by February 4, 2019.
This lack of response indicates Plaintiffs intent not to
continue prosecuting his claim and, therefore, subjects the
case to sua sponte dismissal. See Fed. R.
Civ. P. 41(b) ("If the plaintiff fails to prosecute or
to comply with these rules or a court order, a defendant may
move to dismiss the action or any claim against it.");
Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962)
("The authority of a court to dismiss sua
sponte for lack of prosecution has generally been
considered an 'inherent power,' governed not by rule
or statute but by the control necessarily vested in courts to
manage their own affairs so as to achieve the orderly and
expeditious disposition of cases."); Bollard v.
Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989) (district
court's dismissal following failure to respond to a
specific directive is not abuse of discretion).
claim, given an appropriately liberal construction afforded
to pro se litigants, is also subject to dismissal on
the merits. Plaintiff alleges that Defendants were
deliberately indifferent to his serious medical needs by
delaying to schedule two hernia operations by four months and
twelve months and by failing to provide adequate
post-operation care. (Dkt. No. 1 at 4-5.) Defendants move for
dismissal on the basis that Plaintiff failed to exhaust the
available administrative remedies under the Prison Litigation
Reform Act, 42 U.S.C. § 1997e(a), and submit the
declaration of Amy J. Williams, Legal Assistant at the
Federal Bureau of Prisons ("BOP"). (Dkt. No. 49-1.)
Williams describes the BOP administrative grievance process
and declares that on her review of Plaintiff s prison record,
he failed to exhaust the process, including by initiating the
process in 2017 for incidents alleged to have happened in
2012, 2013 and 2014. Summary judgment is appropriate if the
movant "shows that there is no genuine dispute as to any
material fact." Fed.R.Civ.P. 56(a). Once the movant has
made this threshold showing, the non-moving party must
demonstrate that specific, material facts exist that give
rise to a genuine issue. Celotex Corp. v. Catrett,
Ml U.S. 317, 323 (1986). With no response in opposition,
Plaintiff makes no such showing and Defendants are entitled
to summary judgment.
foregoing reasons, the Court ADOPTS the R
& R (Dkt. No. 62) as the Order of the Court,
GRANTS Defendants' motion for summary
judgment (Dkt. No. 49) and DISMISSES WITH
PREJUDICE Plaintiffs claim.