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Williams v. McNut

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

July 25, 2019

Trey Alexander Williams, Plaintiff,
v.
Captain McNut, Lt. Clark, Broad River Correctional, Lieber Correctional, Ms. Berch, Ms. Ford, SLED, McCormick Correctional, Defendants.

          REPORT OF MAGISTRATE JUDGE

          Kevin F. McDonald United States Magistrate Judge.

         This is a § 1983 action filed by a state prisoner. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(d), (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.

         The plaintiff's complaint was entered on the docket on April 5, 2019 (doc. 1). By Order dated April 12, 2019, the plaintiff was given an opportunity to provide the necessary information to bring the case into proper form for evaluation and possible service of process, including paperwork required to effect service of process (doc. 7). The plaintiff was warned that failure to provide the necessary information and paperwork within the timetable set in the order may subject the case to dismissal (id. at 1). The plaintiff returned only some of the requested documents to the court (docs. 11; 16), so a second proper form order was issued on May 10, 2019 (doc. 13). The plaintiff was warned that failure to provide the necessary information and paperwork within the timetable set in the order may subject the case to dismissal (id. at 1). On May 31, 2019, the plaintiff again provided some of the requested documents (doc. 16) and filed a motion for extension of time (doc. 15). The court granted the plaintiff's motion in its third proper form order, providing him with thirty (30) additional days to bring his case into proper form (doc. 17). The plaintiff then provided some additional forms (doc. 20) and moved for an additional extension of time to bring his case into proper form (doc. 22). The court provided the plaintiff one final fourteen (14) day extension to bring his case into proper form (doc. 23). The plaintiff was specifically warned that “if the plaintiff fails to bring his case into proper form by the deadline provided in this order, the case will be forwarded to the United States District Judge with a recommendation that it be dismissed for failure to comply with an order of the court pursuant to Fed.R.Civ.P. 41(b)” (id.). On July 22, 2019, the plaintiff filed a motion to close his case, indicating that he needed to exhaust his administrative remedies (doc. 33) and a motion for a preliminary injunction and/or temporary restraining order (doc. 31).[1] Despite the extensions outlined above, the plaintiff has not brought his case into proper form.

         Prior to service of an answer or motion for summary judgment by the opposing party, a plaintiff may voluntarily dismiss an action without an order of the court by filing a notice of dismissal. Fed.R.Civ.P. 41(a)(1)(i).[2] After an opposing party has served a responsive pleading, an action may be voluntarily dismissed without prejudice only with leave of court under Federal Rule of Civil Procedure 41(a)(2). Such dismissal is within the discretion of the court. See Davis v. USX Corp., 819 F.2d 1270, 1273 (4th Cir. 1987).

         Based upon the foregoing, it appears the plaintiff no longer wishes to pursue this action so that he can exhaust his administrative remedies. Accordingly, it is recommended that the plaintiff's voluntary dismissal motion be granted and this action be dismissed without prejudice pursuant to Fed.R.Civ.P. 41(a)(1)(i). The plaintiff's attention is directed to the important notice on the next page.

         IT IS SO RECOMMENDED.

         Notice of Right to File Objections to Report and Recommendation

         The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, 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 & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

         Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk United States District Court 300 East Washington Street, Room 239 Greenville, South Carolina 29601

         Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).

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Notes:

[1] A report and recommendation filed contemporaneously herewith recommends denying the plaintiff's motion for a preliminary injunction and/or ...


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