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McCombs v. State

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

September 30, 2019

John McCombs, PETITIONER,
v.
State of South Carolina, RESPONDENT.

          REPORT AND RECOMMENDATION

          MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE.

         This action has been filed by Petitioner, pro se and in forma pauperis, pursuant to 28 U.S.C. § 2241, alleging that his criminal conviction and subsequent commitment as a sexually violent predator are unlawful. Petitioner is in the custody of the South Carolina Sexually Violent Predator Program of the South Carolina Department of Mental Health. On July 26, 2019, Respondent filed a Motion for Summary Judgment, attaching many documents from the underlying state court proceedings. (Dkt. Nos. 17; 18.) In its Motion, Respondent argues that Petitioner's petition should be dismissed because the documents “show a proper commitment under the [State of South Carolina's Sexually Violent Predator Act], an existing remedy available under the statutory annual review process, and that in his current petition, Petitioner [] seeks to challenge a prior conviction which is not a cognizable claim in this action.” (Dkt. No. 17 at 1.)

         On July 29, 2019, this Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the dismissal procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 19.) Petitioner's response was due by August 29, 2019. On August 15, 2019, Respondent filed a Status Report stating that Petitioner refused receipt of the properly served return and Motion for Summary Judgment. (Dkt. No. 23.) Specifically, Respondent stated that “On August 13, 2019, undersigned counsel received the returned mailing package marked ‘Return to Sender Bounds Violation' in handwriting. . . . The returned envelope has been opened and it appears all the documents and original letter are still in the envelope.” (Id.)

         Based on this Status Report, the Court was uncertain whether Petitioner intended to respond to the Motion for Summary Judgment. Given Petitioner's pro se status, the Court issued an Order on August 16, 2019, directing Respondent to re-serve the return and Motion for Summary Judgment on Petitioner, and extending Petitioner's time to respond to the Motion to September 23, 2019. (Dkt. No. 24.) In this Order, the Court again advised Plaintiff of the possible consequences if he failed to adequately respond to the Motion, highlighting the following requirement under Rule 56(c) of the Federal Rules of Civil Procedure:

Rule 56(c) requires that you support your version of all disputed facts with material . . . Your failure to support facts in dispute with such material may result in the court granting the motion. . . . If you fail to dispute the respondent's version of the facts with proper support of your own version, the court may consider the respondent's facts as undisputed.

(Id. at 2.)

         Respondent filed a certificate of service on August 18, 2019, certifying that Petitioner had again been served the return and Motion for Summary Judgment. (Dkt. No. 26.) On August 26, 2019, the Court received two items of mail returned as undeliverable from Petitioner: (1) the July 29, 2019 Roseboro Order; and (2) the Court's July 31, 2019 Order denying Petitioner's Motion for Immediate Injunction. (Dkt. Nos. 19; 21; 27; 28.) Both items of returned mail were marked “Return to Sender Bounds Violation” in handwriting. (Dkt. Nos. 27; 28.) Petitioner has again failed to respond to Respondent's Motion for Summary Judgment.

         Based on the foregoing, Petitioner has failed both to comply with the Court's orders and to dispute Respondent's version of the facts as set forth in its Motion for Summary Judgment.

         Accordingly, it is recommended that this action be dismissed with prejudice for failure to comply with this Court's orders, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and the factors outlined in Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982). See Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989). In the alternative, it is recommended that Respondent's Motion for Summary Judgment by GRANTED, as the undersigned finds Respondent's facts, as set forth in its Motion, to be undisputed.

         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 Post Office Box 835 Charleston, South Carolina 29402

         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, 7 ...


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