Burris v. Thomas et al

Filing 16

ORDER adopting 9 Report and Recommendation. It is ordered that the Complaint is dismissed without prejudice and without issuance and service of process. Signed by Honorable Timothy M Cain on 7/9/2013.(abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION

David Clinton Burris,
Plaintiff,
v.
Kela Evans Thomas, SC Department of
Probation, Parole and Pardon Services
Director; SC Governor Nikki Haley; York
Co. SC Justice Lee Alford; and Kevin S.
Brackett SC Solicitor of York County,
Defendants.

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C/A No.1:13-1614-TMC
ORDER

Plaintiff, David Clinton Burris (“Plaintiff”), proceeding pro se and in forma
pauperis, brings this action pursuant to 42 U.S.C. § 1983. In accordance with 28 U.S.C.
§ 636(b)(1)(B) and Local Rule 73.02(B)(2)(d), D.S.C., all pre-trial proceedings were
referred to a Magistrate Judge. On June 18, 2013, Magistrate Judge Shiva V. Hodges
issued a Report and Recommendation ("Report") recommending that the Complaint be
dismissed without prejudice and without issuance and service of process. (ECF No. 9).
The Magistrate Judge provided Plaintiff a notice advising him of his right to file
objections to the Report. (ECF No. 9 at 9). Plaintiff filed objections to the Magistrate
Judge's Report on July 2, 2013 (ECF No. 14).
The Magistrate Judge makes only a recommendation to the 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, 270-71 (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 court is obligated to conduct a de novo review of every portion of the
Magistrate Judge’s report to which objections have been filed. Id. However, the court
need not conduct a de novo review when a party makes only “general and conclusory
objections that do not direct the court to a specific error in the magistrate’s proposed
findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In
the absence of a timely filed, specific objection, the Magistrate Judge’s conclusions are
reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005).
The Magistrate Judge recommended that the Complaint be dismissed without
prejudice. As noted above, Plaintiff filed objections to the Report which the Court has
carefully reviewed. However, the Plaintiff’s objections provide no basis for this court to
deviate from the Magistrate Judge’s recommended disposition. The objections are nonspecific, unrelated to the dispositive portions of the Report or merely restate Plaintiff’s
claims.
Plaintiff’s claims against these defendants are not actionable under section 1983.
Nonetheless, the court would like to note a recent South Carolina Supreme Court
decision, State v. Dykes1, in which the court held that while mandatory electronic
monitoring for specific offenses is constitutional, denial of a judicial review process for

1

No. 2010-160047, 2013 WL 2242768, at *4 (S.C. May 22, 2013).

lifetime electronic monitoring is unconstitutional. This decision may provide Plaintiff
judicial recourse. However, this decision does not effect the current 1983 claims and
does not impede the adoption of the Report from the Magistrate Judge.
After a thorough review of the Report and the record in this case pursuant to the
standard set forth above, the Court finds Plaintiff’s objections are without merit.
Accordingly, the court adopts the Report and incorporates it herein. It is therefore
ORDERED that the Complaint is DISMISSED without prejudice and without issuance
and service of process.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
July 9, 2013
Anderson, South Carolina

NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules
3 and 4 of the Federal Rules of Appellate Procedure.