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Bryan v. Williams

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

March 13, 2019

La'Quan D. Bryan, Petitioner,
v.
Charles Williams, 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. 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 prejudice.

         I.Background

         On 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 objections.

         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 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.

         III. Discussion

         The 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.

         IV. Conclusion

         For the 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 WITHOUT PREJUDICE.

         Certificate ...


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