Cox v. Ozmint et al

Filing 14

ORDER RULING ON REPORT AND RECOMMENDATIONS. Plaintiffs Motion to Proceed in forma pauperis is DENIED. Plaintiff shall have fifteen (15) days to pay the filing fee. Office of the Clerk of Court shall withhold entry of judgment until such time expires. If the Plaintiff fails to pay the filing fee, the Complaint is to be dismissed without prejudice under the three-strikes rule of 28 U.S.C. §1915(g). Signed by Honorable Timothy M Cain on 10/19/11. (gpre, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Paul Leslie Cox,

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Plaintiff,
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v.
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Jon E. Ozmint;
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Governor of S.C.; and
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The Attorney General of S.C.,
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Defendants.
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____________________________________)

C.A. No. 2:11-252-TMC

ORDER

Paul Leslie Cox (“Plaintiff”), a pro se prisoner, filed a Complaint pursuant to 42 U.S.C. §
1983. (Doc. # 1). Plaintiff also filed a Motion for Leave to Proceed in forma pauperis under
28 U.S.C. § 1915. (Doc #7). Plaintiff is subject to the three-strikes rule of the Prison Litigation
Reform Act (PLRA), and he does not allege that he is under imminent danger of serious physical
injury.
The Magistrate Judge’s Report and Recommendation (Doc. #10), filed on March 31,
2011, recommends that the Court deny the Plaintiff’s Motion for Leave to Proceed in forma
pauperis and that the Plaintiff be given fifteen (15) days from the date of this Order to pay the
filing fee (currently $350.00), and that the Office of the Clerk of Court withhold entry of
judgment until such time expires. The Magistrate also recommended that if the Plaintiff fails to
pay the filing fee, that the Complaint be dismissed without prejudice under the three-strikes rule
of 28 U.S.C. § 1915(g). The Report and Recommendation sets forth in detail the relevant facts
and legal standards on this matter, and the court incorporates the Magistrate Judge’s Report
herein without a recitation.
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The Magistrate Judge’s Report and Recommendation 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 and Recommendation 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 and Recommendation
(Doc. # 10 at 4). However, Plaintiff filed no objections to the Report and Recommendation.
In the absence of objections to the Magistrate Judge’s Report and Recommendation, this
court is not required to provide an explanation for adopting the recommendation. See Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, “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) (quoting Fed. R. Civ. P. 72
advisory committee’s note). Furthermore, failure to file specific written objections to the Report
and Recommendation results in a party’s waiver of the right to appeal from the judgment of the
District Court based upon such recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474
U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727
F.2d 91 (4th Cir. 1984).
After a thorough review of the Report and Recommendation and the record in this case,
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the court adopts the Magistrate Judge’s Report and Recommendation (Doc. #10) and
incorporates it herein. It is, therefore,
ORDERED that the Plaintiff’s Motion to Proceed in forma pauperis (Doc. # 7) is
DENIED. It is further ordered that the Plaintiff shall have fifteen (15) days from the date of
this Order to pay the filing fee (currently $350.00), and the Office of the Clerk of Court shall
withhold entry of judgment until such time expires. If the Plaintiff fails to pay the filing fee, the
Complaint is to be dismissed without prejudice under the three-strikes rule of 28 U.S.C. §
1915(g).
IT IS SO ORDERED.
s/ Timothy M. Cain
United States District Judge
Greenville, South Carolina.
October 19, 2011.

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.

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