Opinion

McKelvie v. Brown

Court
District Court, D. South Carolina
Filed
May 29, 2024
Cited by
0 cases
Authority
More cited than 29.6%

stating that “in 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.”

How later courts described this case

  • stating that “in 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.”

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

BEAUFORT DIVISION

Angelo F. McKelvie, Civil Action No. 9:22-cv-1018-CMC

Plaintiff,

vs. ORDER

D.H.O. Brown,

Defendant.

This matter is before the court on Plaintiff’s Complaint, alleging violations of his

constitutional rights. ECF No. 1. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule

73.02 (B)(2)(d), D.S.C., the matter was referred to United States Magistrate Judge Molly H. Cherry

for pre-trial proceedings.

Defendant filed a motion for summary judgment on January 22, 2024. ECF No. 48. The

next day a Roseboro Order was entered because Plaintiff is proceeding pro se, advising him of the

significance of a motion to dismiss and the need to file a response. ECF No. 49. Plaintiff filed a

motion for extension of time, asserting he had served defendant with a motion for discovery, and

asked for more time to respond to the summary judgment motion. ECF No. 51. The Magistrate

Judge granted the additional time to respond to the motion, but noted the discovery deadline

expired on November 21, 2023, and as such the discovery was untimely served. ECF No. 52. She

denied the motion for additional time to permit further discovery, but extended the response to

motion date to April 18, 2024. Id. Plaintiff did not file a response to the motion.

On May 7, 2024, the Magistrate Judge issued a Report and Recommendation (“Report”)

recommending this action be dismissed for lack of prosecution. ECF No. 55. The Magistrate Judge

advised Plaintiff of the procedures and requirements for filing objections to the Report and the

serious consequences if he failed to do so. Plaintiff failed to file objections or any other filing with

this court, and the time to do so has expired.

The Magistrate Judge makes only a recommendation to this court. The recommendation

has no presumptive weight, and the responsibility to make a final determination remains with the

court. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo

determination of any portion of the Report of the Magistrate Judge to which a specific objection

is made. The court may accept, reject, or modify, in whole or in part, the recommendation made

by the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28

U.S.C. § 636(b). The court reviews the Report only for clear error in the absence of an objection.

See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that

“in 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.”) (citation omitted).

After a review of the record, the applicable law, and the Report and Recommendation of

the Magistrate Judge, the court finds no clear error. Accordingly, the court adopts the Report by

reference in this Order. This action is dismissed without prejudice for failure to prosecute.

IT IS SO ORDERED.

s/Cameron McGowan Currie

CAMERON MCGOWAN CURRIE

Senior United States District Judge

Columbia, South Carolina

May 29, 2024

2

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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