United States District Court, D. South Carolina, Aiken Division
La'Quan D. Bryan, Plaintiff,
Charles Williams, Warden, et al., Defendants.
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. 69) recommending
the Court dismiss Plaintiffs Complaint. For the reasons set
forth below, the Court adopts in part and declines to adopt
in part the R & R, and the Complaint is dismissed without
October 25, 2018, Plaintiff filed a Complaint pursuant to 42
U.S.C. § 1983. (Dkt. No. 1.) Plaintiff alleges various
claims related to his treatment while incarcerated.
(Id.) On December 5 and 7, 2018, the Magistrate
Judge issued orders regarding deadlines and denying
Plaintiffs motion for injunctive relief. (Dkt. Nos. 37, 40.)
The orders were mailed to Plaintiffs address of record at the
time at the McCormick Correctional Institution. The orders
were ultimately forwarded to Perry Correctional Institution,
where Plaintiff was previously transferred, and Lee
Correctional Institution, where it appears Plaintiff is
currently housed. (Dkt. Nos. 67, 68.) However, both of those
orders were returned as undeliverable. (Id.)
Furthermore, Plaintiff was previously ordered to keep the
Court advised of any change of address, yet has not provided
any updated address. (Dkt. No. 7.) Plaintiff has not filed
anything with this Court since December 10, 2018. (Dkt. Nos.
44, 45.) Therefore, the Magistrate Judge issued a Report and
Recommendation recommending dismissal for failure to
prosecute. (Dkt. No. 69.) Plaintiff has not filed objections.
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 to which 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 Cambyv. 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.
Plaintiff has not provided an updated mailing address and has
not responded to any motions or orders since, at the latest,
December 10, 2018. Plaintiffs failure to update his mailing
address and the Court's lack of any ability to contact
Plaintiff indicates an intent not to prosecute this case and
the Complaint 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 Ballardv. Carlson, 882 F.2d 93, 95 (4th
Cir. 1989) (dismissal appropriate when accompanied by a
warning). Therefore, the Court adopts the Magistrate
Judge's recommendation to dismiss the Complaint for
failure to prosecute. However, the Court determines that
dismissal without prejudice is appropriate.
foregoing reasons, the Court ADOPTS IN PART
and DECLINES TO ADOPT IN PART the R & R
of the Magistrate Judge (Dkt. No. 69), and the Complaint is
DISMISSED WITHOUT PREJUDICE.