Johnson v. Cannon et al

Filing 15

ORDER adopting 13 Report and Recommendation and dismissing Petition without prejudice and without requiring Respondents to file an answer. A certificate of appealability is denied. Signed by Honorable Mary Geiger Lewis on 11/7/2017. (mwal)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA AIKEN DIVISION TRISTAN JOHNSON, Petitioner, vs. SHERIFF AL CANNON, CHIEF BEATTY, NICHOLAS G. SMIT, AND SCARLET WILSON, Respondents. § § § § § § § § § CIVIL ACTION NO. 1:17-02500-MGL ORDER ADOPTING REPORT AND RECOMMENDATION, AND DISMISSING THE PETITION This case was filed as an action under 28 U.S.C. § 2241. 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 Petitioner’s petition under 28 U.S.C. § 2241 be dismissed, without prejudice, and without requiring Respondents to file an answer. 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 October 17, 2017, ECF No. 13, but Petitioner 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.3d310, 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 Petitioner’s petition under 28 U.S.C. § 2241 is DISMISSED, without prejudice, and without requiring Respondents to file an answer. To the extent Petitioner requests a certificate of appealability from this Court, that certificate is DENIED. 2 IT IS SO ORDERED. Signed this 7th day of November, 2017, 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 30 days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure. 3

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