United States District Court, D. South Carolina, Florence 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 (0kt. 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 fled neither a response in opposition nor
objections to the R & R. The Court previously entered an
order adopting the R & R as the order of the Court, which
the Court then vacated so as to grant Plaintiffs request for
an extension to object. On March 12, 2019, Plaintiff was
ordered to file any objections on or before April 1, 2019.
(Dkt. No. 70.) No. objections were made.
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.
Plaintiff was also granted an extension to object to the R
& R, but filed no objections. 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."); Bollardv. 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, respectively, 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 Plaintiffs 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, 477 U.S. 317, 323 (1986). With no
response in opposition or objections to the R & R,
Plaintiff makes no such showing and the record entitles
Defendants 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.