Hightower v. Dunbar ( 2022 )

EE oR a) 6, A * a Se x nS Rorsp IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA FLORENCE DIVISION DAVID HIGHTOWER, § Petitioner, § § vs. § CIVIL ACTION NO. 4:21-4155-MGL § § WARDEN DUNBAR, § Respondent. § ORDER ADOPTING THE REPORT AND RECOMMENDATION AND DISMISSING THE PETITION PURSUANT TO RULE 41(B) OF THE FEDERAL RULES OF CIVIL PROCEDURE Petitioner David Hightower filed this 28 U.S.C. § 2241 petition against Respondent Warden Dunbar (Dunbar). Hightower is self represented. The matter is before the Court for review of the Report and Recommendation (Report) of the United States Magistrate Judge suggesting to the Court that the petition be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The Report was made in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1). The Magistrate Judge filed the Report on August 31, 2022, but Hightower failed to file any objections to the Report. “[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, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note). Moreover, a failure to object waives appellate review. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985). After a thorough review of the Report and the record in this case pursuant to the standard set forth above, the Court adopts the Report and incorporates it herein. Therefore, it is the judgment of the Court the petition is DISMISSED WITH PREJUDICE pursuant to Rule 41(b) of the Federal Rules of Civil Procedure; and Dunbar’s motion to dismiss is necessarily RENDERED AS MOOT. To the extent Hightower moves for a certificate of appealability, his request is DENIED. IT IS SO ORDERED. Signed this 26th day of September, 2022, in Columbia, South Carolina. s/ Mary Geiger Lewis MARY GEIGER LEWIS UNITED STATES DISTRICT JUDGE ***** NOTICE OF RIGHT TO APPEAL The parties are hereby notified of the right to appeal this Order within sixty days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.