United States District Court, D. South Carolina, Aiken Division
La'Quan D. Bryan, Petitioner,
Charles Williams, Respondent.
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. 27) recommending
the Court dismiss Petitioner's Petition for a Writ of
Habeas Corpus ("Petition"). 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
November 7, 2018, Petitioner filed a Petition for a Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254. (Dkt. No.
1.) Petitioner alleges his guilty plea was involuntary based
on ineffective assistance of counsel. (Id.)
Respondent moved for summary judgment on January 24, 2019.
(Dkt. Nos. 21, 22.) Petitioner has filed nothing since
December 6, 2018, when he filed an Amended Petition. (Dkt.
No. 16.) Petitioner has not filed a response to
Respondent's motion for summary judgment which, per the
Roseboro order, was due on February 25, 2019. (Dkt.
No. 23.) In fact, all mail from the Court addressed to
Petitioner at the McCormick Correctional Institution has been
returned as undeliverable since the first proper form order
issued on December 5, 2018. (Dkt. Nos. 11, 17.) The Proper
Form Orders were forwarded to Perry Correctional Institution,
where Petitioner was previously transferred, and Lee
Correctional Institution, where it appears Petitioner is
currently housed. (Dkt. Nos. 25, 26.) Nonetheless, the mail
was returned as undeliverable. (Id.) Further,
Petitioner did not provide the Court with an updated address,
as required by the proper form orders. (Dkt. Nos. 5, 11.)
Regardless, Petitioner also failed to respond to the motion
for summary judgment within the time allotted. (Dkt. No. 23.)
Therefore, the Magistrate Judge issued a Report and
Recommendation recommending dismissal for failure to
prosecute. (Dkt. No. 27.) Petitioner has not filed
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't 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 Petitioner specifically objects.
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 Corn,
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.
Petitioner failed to respond to Defendants' motion for
summary judgment, has not provided an updated mailing
address, and has not responded to any motions or orders
since, at the latest, December 6, 2018. Petitioner's lack
of response to the Roseboro order and motion for
summary judgment, and failure to update his mailing address,
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 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.
27), and Petitioner's Petition is DISMISSED