United States District Court, D. South Carolina, Charleston Division
James C. Hawkins Plaintiff,
Cpt. James McFadden, Felicia McQueen, Defendants.
matter is before the court for review of the Magistrate
Judge's Report and Recommendation (“Report”)
filed on June 20, 2019. (ECF No. 76.) The Report addresses
Plaintiff James Hawkins' suit under 42 U.S.C. § 1983
and recommends that the court grant Defendant Felicia
McQueen's Motion for Summary Judgment (ECF No. 63). For
the reasons stated herein, the court ACCEPTS
the Report (ECF No. 76), and GRANTS
Defendant McQueen's Motion for Summary Judgment (ECF No.
FACTUAL AND PROCEDURAL BACKGROUND
Report sets forth the relevant facts and legal standards
which this court incorporates herein without a full
recitation. (ECF No. 76.) As brief background, on April 2,
2018, Plaintiff initially brought an excessive force claim
against Defendant James McFadden, alleging McFadden
“assaulted” Plaintiff during an altercation
involving another detainee. (ECF. No. 1 at 5.) On November
27, 2018, the court granted Plaintiff's motion to add
Felicia McQueen, Head Nurse Practitioner, as a named
Defendant. (ECF No. 37.) Plaintiff alleged that McQueen
provided inadequate medical treatment of the injuries he
sustained during the alleged assault. (ECF. No. 1 at 6.)
April 16, 2019, Defendant McQueen filed a Motion for Summary
Judgment. (ECF. No. 63.) On April 17, 2019, this court issued
an order pursuant to Roseboro v. Garrison, 528 F.2d
309 (4th Cir. 1975), advising Plaintiff of the dismissal
procedure and the possible consequences if he failed to
adequately respond to McQueen's motion. (ECF. No. 64.)
Plaintiff's response was due on May 20, 2019, but
Plaintiff failed to respond at any time. On June 20, 2019,
the Magistrate Judge recommended that Hawkins' claims
against McQueen be dismissed. The Report is now ripe for
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 June 20, 2019. (ECF No. 76.) Objections to
the Report were due by July 5, 2019. (ECF No. 76.) However,
objections were due by July 8, 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 objections 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).
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. 76.) Because
there are no 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. 76) and incorporates it
herein. Based on the foregoing, “it appears Plaintiff
no longer wishes to pursue his claims against Defendant
Felicia McQueen.” (ECF No. 76 at 2.) Therefore, the
court GRANTS Defendant McQueen's Motion
for Summary Judgment (ECF No. 63) and
DISMISSES, with prejudice, all claims
against Felicia McQueen for lack of prosecution and for
failure to comply with this court's orders, pursuant to
Rule 41(b) of the Federal Rules of Civil Procedure.
Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920
(4th Cir. 1982). See Ballard v. Carlson, 882 F.2d 93
(4th Cir. 1989).