Mack v. Guns and Ammo

Filing 14

ORDER adopting 10 Report and Recommendation. It is ordered that Plaintiff's Complaint [ECF No. 1] is denied and this case is dismissed without prejudice and without service of process. Signed by Honorable J Michelle Childs on 12/27/2013.(abuc)

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

Eddie Mack Stewart, Jr.,
Plaintiff,
v.
Guns and Ammo,
Defendant.
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Civil Action No.: 1:13-cv-01960-JMC
ORDER

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This matter is before the court for review of the magistrate judge's Report and Recommendation
(“Report”), [ECF No. 10], filed August 26, 2013, recommending that the Complaint in the abovecaptioned case be dismissed without prejudice and without issuance and service of process. Plaintiff
brought this action seeking relief pursuant to Title 42 U.S.C. § 1983. The Report sets forth in detail the
relevant facts and legal standards on these matters which the court incorporates herein without a
recitation.
The magistrate judge's Report is made in accordance with 28 U.S.C. § 636(b)(1) 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 this court. See 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 objections are made,
and the court may accept, reject, or modify, in whole or in part, the magistrate judge's recommendation or
recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
Plaintiff was advised of his right to file objections to the Report [ECF No. 10-7]. Plaintiff

timely filed objections to the Report on September 3, 2013. [ECF No. 12].
In his objections, Plaintiff requests clarification about the effect of his lawsuit being
dismissed without prejudice. The court instructs Plaintiff that his lawsuit was dismissed because
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he has not alleged a claim that is properly within the jurisdiction of the federal court. Instead, the
magistrate judge has determined that Plaintiff has alleged a claim for personal injury based on
state law and is therefore appropriate for state court. [See Report and Recommendation, ECF
No. 10].

Since the order dismissed the action without prejudice, Plaintiff is allowed to

reconsider the allegations of his complaint to determine whether he can allege a claim based on
federal law or allege a state law claim where there is diversity in the citizenship of the parties so
that he can invoke the jurisdiction of the federal court.
After a thorough review of the Report and Recommendation and the record in this case, the court
ACCEPTS the magistrate judge’s Report and Recommendation. [ECF No. 10].

It is therefore

ORDERED that Plaintiff’s Complaint [ECF No. 1] is DENIED and this case is DISMISSED without
prejudice and without service of process.

IT IS SO ORDERED.

United States District Judge

December 27, 2013
Greenville, South Carolina

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