United States District Court, D. South Carolina, Beaufort Division
matter is before the court for review of the Magistrate
Judge's Report and Recommendation (“Report”)
filed on September 25, 2019. (ECF No. 11.) The Report
addresses Plaintiff Hector Villafuerte's suit under 42
U.S.C. § 1983 and recommends that the court dismiss this
action without prejudice, in accordance with Fed.R.Civ.P.
41(b) for lack of prosecution. For the reasons stated herein,
the court ACCEPTS the Report, and
DISMISSES this action WITHOUT
FACTUAL AND PROCEDURAL BACKGROUND
Report sets forth the relevant facts and legal standards
which this court incorporates herein without a full
recitation. (ECF No. 11.) As brief background, on July 11,
2019, Plaintiff, proceeding pro se, filed his
Complaint, alleging constitutional violations pursuant to 42
U.S.C. § 1983 and the Eighth Amendment to the
Constitution of the United States. (ECF No. 1.) Specifically,
in his Complaint, Plaintiff alleges that he underwent surgery
in 2010 and “is having numerous medical problems with
[his] left lung and heart and suffers every day.” (ECF
No. 1-1 at 2.) Plaintiff further alleges that the institution
provides medication in his food, but because he “does
not eat from the cafeteria, [he] has not been able to take
the medication.” (Id.) In terms of relief,
Plaintiff desires “medical treatment.” (ECF No. 1
Order dated August 21, 2019, Plaintiff was given an
opportunity to provide necessary information and paperwork to
bring the case into proper form, but he has failed to respond
to the court's August 2019 order in any way. (ECF No. 11
at 2.) For these reasons, the Magistrate Judge ultimately
recommended that the court dismiss the action. (ECF No. 11.)
The Report is now ripe for review.
STANDARD OF REVIEW
Magistrate Judge's Report is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the
District of South Carolina. The Magistrate Judge only makes a
recommendation to this court, and the recommendation has no
presumptive weight. See Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The responsibility to make a final
determination remains with the court. Id. at 271. As
such, the court is charged with making de novo
determinations of those portions of the Report and
Recommendation to which specific objections are made.
See 28 U.S.C. § 636(b)(1); see also
Fed. R. Civ. P. 72(b)(3). Thus, the court may accept, reject,
or modify, in whole or in part, the Magistrate Judge's
recommendation or recommit the matter with instructions. 28
U.S.C. § 636(b)(1).
parties were apprised of their opportunity to file objections
to the Report on September 25, 2019. (ECF No. 11 at 3.)
Objections to the Report were due by October 9, 2019. (ECF
No. 11.) However, objections were due by October 14, 2019, if
a party was served by mail or otherwise allowed under
Fed.R.Civ.P. 6 or Fed. R. Crim. P. 45. (Id.) Neither
party filed an objection to the Report. In the absence of
timely objections to the Magistrate Judge's Report, this
court is not required to provide an explanation for adopting
the recommendation. See Camby v. Davis, 718 F.2d
198, 199 (4th Cir. 1983). Instead, the court 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, 315
(4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory
committee's note). Furthermore, failure to file specific
written objections to the Report results in a party's
waiver of the right to appeal from the 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). After a thorough and careful review of the
record, the court finds the Magistrate Judge's Report
provides an accurate summary of the facts and law in the
instant case. (ECF No. 11.) Because neither party filed
objections, the court adopts the Report herein.
Camby, 718 F.2d at 199.
thorough review of the Report and the record in this case,
the court ACCEPTS the Magistrate Judge's
Report and Recommendation (ECF No. 11) and incorporates it
herein. The court, therefore, DISMISSES this
action WITHOUT PREJUDICE.