Fishburne v. State of South Carolina et al

Filing 56

ORDER RULING ON REPORT AND RECOMMENDATIONS adopting 52 Report and Recommendations, granting 32 Motion for Summary Judgment, filed by Warden of Kershaw Correctional Institution, Henry McMaster, State of South Carolina. Signed by Honorable Henry F Floyd on 12/30/2009. (jpet, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ROCK HILL DIVISION SHAWN FISHBURNE, Petitioner, vs. STATE OF SOUTH CAROLINA et al., Respondents. § § § § CIVIL ACTION NO. 0:08-3366-HFF-PJG § § § ORDER This case was filed as a 28 U.S.C. § 2254 action. Petitioner is proceeding pro se. The matter is before the Court for review of the Report and Recommendation (Report) of the United States Magistrate Judge suggesting that Respondents' motion for summary judgment (Docket Entry 32) be granted. 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 December 9, 2009, but Petitioner failed to file any objections to the Report. Instead, on December 16, 2009, the Clerk of Court entered a letter from

Petitioner requesting that the Court dismiss his case "without prejudice, as to give [Petitioner] the opportunity to raise these issues in the Supreme Court." (Petitioner's Letter, dated Dec. 14 , 2009.) In the absence of objections, the Court is not required to give any explanation for adopting the recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). 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 that Respondents' motion for summary judgment (Docket Entry 32) is GRANTED. IT IS SO ORDERED. Signed this 30th day of December, 2009, in Spartanburg, South Carolina.

s/ Henry F. Floyd HENRY F. FLOYD UNITED STATES DISTRICT JUDGE

***** NOTICE OF RIGHT TO APPEAL The parties are hereby notified of the right to appeal this Order within thirty (30) days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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