Mixson v. Mulbry
ORDER RULING ON REPORT AND RECOMMENDATIONS adopting 8 Report and Recommendations, the complaint is dismissed, without prejudice and without issuance and service of process. Signed by Honorable Margaret B Seymour on 4/15/2011. (asni, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Daniel Mark Mixson,
) C/A No. 2:11-0101-MBS
Dr. Leonard, W. Mulbry,
At the time of the underlying events, Plaintiff Daniel Mark Mixson was a pretrial detainee
at the Charleston County Detention Center in North Charleston, South Carolina.
proceeding pro se, filed a complaint on January 12, 2011, asserting that Defendant, a court-appointed
psychiatrist, committed malpractice by declaring Plaintiff not competent to assist in his defense.
Plaintiff contends that he has suffered physical and mental injury as a result.
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., the within action was
referred to United States Magistrate Judge Paige J. Gossett for pretrial handling. The Magistrate
Judge reviewed the complaint pursuant to the provisions of 28 U.S.C. §§ 1915 and 1915A. On
March 8, 2011, the Magistrate Judge issued a Report and Recommendation in which she determined
that the court lacks either diversity or federal question jurisdiction over the matter. Accordingly, the
Magistrate Judge recommended that the complaint be dismissed without prejudice and without
issuance and service of process. Plaintiff filed no objections to the Report and Recommendation.1
The Report and Recommendation originally was sent to Plaintiff’s last known address at the
Charleston County Detention Center. The envelope containing the Report and Recommendation was
returned undeliverable on March 14, 2011. The Report and Recommendation was sent to an
alternate address provided by Plaintiff in James Island, South Carolina. The envelope containing
the Report and Recommendation has not been returned.
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. For the reasons stated hereinabove and
in the Report and Recommendation, the 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
April 15, 2011
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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