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Hawkins v. McFadden

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

December 12, 2019

James C. Hawkins Plaintiff,
v.
Cpt. James McFadden, Felicia McQueen, Defendants.

          ORDER

         This 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. 63).

         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. 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.)

         On 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 review.

         II. STANDARD OF REVIEW

         The 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).

         III. DISCUSSION

         The 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).

         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. 76.) Because there are no objections, the court adopts the Report herein. Camby, 718 F.2d at 199.

         IV. CONCLUSION

         After a 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).

         IT ...


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