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Kough v. Kalb

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

May 16, 2019

Richard Kough, Plaintiff,
v.
Matthew Kalb, Russell Painter, Matthew Simon, and Laura Caldwell, Defendants.

          ORDER

         Before the court for review is the Magistrate Judge's Report and Recommendation (“Report”) filed on April 29, 2019 (ECF No. 105). The court ACCEPTS the Magistrate Judge's Report and incorporates it herein by reference. For the reasons set out in the Report, the court GRANTS Defendant Laura Caldwell, Matthew Kalb, Russell Painter, and Matthew Simon's Motion for Summary Judgment (ECF No. 92) and DISMISSES this action with prejudice for failure to prosecute.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The Report sets forth the relevant facts and legal standards, which this court incorporates herein without a full recitation. (ECF No. 105 at 1-2.) As brief background, on March 26, 2018, Plaintiff Richard Kough, proceeding pro se and in forma pauperis, commenced this 42 U.S.C. § 1983 action against Defendants. (ECF No. 1.) On January 11, 2019, Defendants filed a Motion for Summary Judgment. (ECF No. 92.) On that same day, the Magistrate Judge entered a Roseboro[1] order, advising Plaintiff of the summary judgment procedures and the consequences of failing to adequately respond. (ECF No. 93.) However, despite being granted two extensions, Plaintiff failed to respond to Defendants' Motion. (ECF Nos. 95, 96, 102, 103.)

         On April 29, 2019, the Magistrate Judge entered her Report. (ECF No. 105.) The Report recommends granting Defendants' Motion (ECF No. 92) and dismissing this action with prejudice for failure to prosecute because “Plaintiff has filed no response [to Defendants' Motion]. As such, it appears to the court that Plaintiff does not oppose Defendants' [M]otion and wishes to abandon his action.” (Id. at 2 (citing Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978); Fed.R.Civ.P. 41(b)).)

         II. STANDARD OF REVIEW

         The Magistrate Judge's Report and Recommendation is made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District Court of South Carolina. The Magistrate Judge only makes a recommendation to this court; the responsibility to make a final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This court engages in a de novo review of those portions of the Report and Recommendation to which the parties have made specific objections. See 28 U.S.C. § 636(b)(1). See also Fed. R. Civ. P. 72(b)(3). The court may accept, reject or modify, in whole or in part, the Magistrate Judge's recommendation or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).

         III. DISCUSSION

         On April 29, 2019, as part of the Report, the Magistrate Judge notified the parties of their right to file objections by May 13, 2019. (ECF No. 105-1.) Neither of the parties filed any objections to the Report by this date. In the absence of objections to the Magistrate Judge's Report, this court is not required to provide an explanation for adopting the recommendations without modification. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Absent objections, the court must only ensure that there is no clear error on the face of the record in order to accept the recommendations. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note). If a party fails to file specific, written objections to the Report, the party forfeits the right to appeal the court's decision concerning the Report. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984). Accordingly, since none of the parties filed any objections to the Report, and the court observes no clear error on the face of the record, the court accepts the Magistrate Judge's Report. See Diamond, 416 F.3d at 315; Camby, 718 F.2d at 199.

         IV. CONCLUSION

         After a thorough and careful review of the record, the court finds the Magistrate Judge's Report and Recommendation provides an accurate summary of the facts and law in this case. Accordingly, the court ACCEPTS the Magistrate Judge's Report and Recommendation (ECF No. 105) and incorporates it herein by reference. For the reasons set out in the Report, the court GRANTS Defendants' Motion for Summary Judgment (ECF No. 92) and DISMISSES this action with prejudice for failure to prosecute.

         IT IS SO ORDERED.

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Notes:

[1] In Roseboro v. Garrison, the United States Court of Appeals for the Fourth Circuit held that district courts are required to provide pro se litigants with an explanation of summary judgment ...


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