Pelzer v. McCall et al

Filing 12

ORDER adopting 10 Report and Recommendations of Magistrate Robert S. Carr that plaintiff's complaint be dismissed without service and without issuance and service of process. Signed by Honorable Margaret B Seymour on 10/15/10.(hhil, )

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

) ) C/A No. 2:10-2065-MBS Plaintiff, ) ) vs. ) ) ORDER Michael McCall, Jr.; Florence Mauney; ) Miriam Cocciolone; Mary Coleman; ) Jimmy Simmons; Jon Ozmint, ) ) Defendants. ) ____________________________________) Plaintiff Thomas Lee Pelzer is an inmate in custody of the South Carolina Department of Corrections. He currently is housed at Perry Correctional Institution in Pelzer, South Carolina. Plaintiff, proceeding pro se, brought this action pursuant to 42 U.S.C. § 1983 on August 9, 2010, alleging that his constitutional rights have been violated because of alleged inadequate ventilation in his cell, infrequent cleaning of his cell, and failure to investigate his grievances. In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred to United States Magistrate Judge Robert S. Carr for pretrial handling. The Magistrate Judge
re v ie w e d the complaint pursuant to the provisions of 28 U.S.C. §§ 1915, 1915A, and the Prison Litiga tio n Reform Act of 1996. On September 16, 2010, the Magistrate Judge issued a Report and R e co m m e n d a tio n in which he recommended that the complaint be summarily dismissed for failing

Thomas Lee Pelzer,

to state a claim of constitutional significance. Plaintiff filed no objections to the Report and Recommendation. The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight. The responsibility for making a final determination remains with this court.

Mathews v. Weber, 423 U.S. 261, 270 (1976). The court is charged with making a de novo determination of any portions of the Report and Recommendation to which a specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or may recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). In 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.3d 310, 315 (4th Cir. 2005). The court has carefully reviewed the record. The court adopts the Report and

Recommendation and incorporates it herein by reference. Accordingly, Plaintiff's complaint is dismissed without prejudice and without issuance and service of process. IT IS SO ORDERED.

/s/ Margaret B. Seymour United States District Judge Columbia, South Carolina October 15, 2010.

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

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