Fetherson v. Blackmon et al

Filing 67

ORDER adopting the 37 Report and Recommendation and dismissing the action without prejudice and without issuance and service of process as to all Defendants except for Defendant Lieutenant Monty Lee Blackmon. Signed by Honorable Joseph F. Anderson, Jr. on 4/12/2017. (bgoo)

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA ROCK HILL DIVISION Dana Fetherson, #302558, C/A No. 0:16-3189-JFA-PJG Plaintiff, v. ORDER Lieutenant Monty Lee Blackmon; John Joseph Jost; Tommy R. Carter; Danny C. Bennett; Michael B. Howell; Wally Thomas; Thomas C. Bailey; Christine M. Rogers; Wanda Owens; Jesse L. Rathel; Gail Funderburk; Leonard J. Hilton; Margaret Ann Horton; Johnny W. Cauthen; Steven T. Marshall; Senior Agent F. Dan DeFreese; Glenda M. Williams; Michael Green, SLED Agent; Diane Bodie; Special Agent Ilan N. Simmons; Special Agent Bruce S. Gantt, Jr.; Jeffery L. Steele, Defendants. I. INTRODUCTION Dana Fetherson (“Plaintiff”), a prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983. The Amended Complaint has been filed pursuant to 28 U.S.C. §§ 1915 & 1915A. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), D.S.C., the case was referred to the Magistrate Judge. The Magistrate Judge assigned to this action1 prepared a thorough Report and Recommendation (“Report”) and opines that this Court should dismiss the Amended Complaint 1 The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.). 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. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions of the Report and in this case without prejudice and without issuance and service of process as to all Defendants except for Lieutenant Monty Lee Blackmon (“Blackmon”) pursuant to 28 U.S.C. § 1915A. (ECF No. 37). The Report sets forth, in detail, the relevant facts and standards of law on this matter, and this Court incorporates those facts and standards without a recitation. Plaintiff filed objections to the Report on March 30, 2017. (ECF No. 57). Therefore, this matter is ripe for review. A district court is only required to conduct a de novo review of the specific portions of the Magistrate Judge’s Report to which an objection is made. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b); Carniewski v. W. Virginia Bd. of Prob. & Parole, 974 F.2d 1330 (4th Cir. 1992). In the absence of specific objections to portions of the Report of the Magistrate, this Court is not required to give an explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). It appears that Plaintiff’s only objection to the Report is that the “twenty-one Defendants indirectly participated in Plaintiff’s false arrest and imprisonment by failing to provide Plaintiff with his grand jury impanel documents.” (ECF No. 57 p. 4). Despite this bare assertion, Plaintiff fails to reveal any error in the Report. The Magistrate Judge assigned to this action thoroughly analyzed Plaintiff’s Amended Complaint and liberally construed all of his claims. (ECF No. 37 p. 2–5). Nevertheless, Plaintiff failed to plead facts sufficient to support a claim against any Defendant other than Blackmon. Consequently, Plaintiff’s objection is without merit. After carefully reviewing the applicable laws, the record in this case, as well as the Report, this court finds the Magistrate Judge’s recommendation fairly and accurately summarizes the facts and applies the correct principles of law. Accordingly, the Court ADOPTS the Report and Recommendation 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 to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1). 2 Recommendation (ECF No. 37). Plaintiff’s Amended Complaint is dismissed without prejudice and without issuance and service of process as to all Defendants in this action except for Defendant Blackmon because Plaintiff failed to state a claim upon which relief can be granted as to these Defendants. The remaining claims as to Lieutenant Monty Lee Blackmon remain pending before the Magistrate Judge. IT IS SO ORDERED. April 12, 2017 Columbia, South Carolina Joseph F. Anderson, Jr. United States District Judge 3

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