Durrance v. South Carolina Department of Corrections et al

Filing 25

ORDER adopting 15 Report and Recommendations of Magistrate Judge Hendricks, denying 4 Motion for Summary Judgment without prejudice as premature. Signed by Honorable J Michelle Childs on 4/29/11.(hhil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Larry Durrance,

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Plaintiff,
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v.
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Lavern Cohen, Warden, et.al.,
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Defendant.
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____________________________________)

C.A. No. 2:11-cv-00368-JMC

ORDER

This matter is now before the court upon the Magistrate Judge's Report and
Recommendation [Doc. #15] filed on March 17, 2011, recommending Plaintiff’s Motion for
Summary Judgement [Doc. #15] be denied without prejudice as premature. 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 and Recommendation herein without a recitation.

Standard of Review
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.
# 15, at 3]. 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, the
court adopts the Magistrate Judge’s Report and Recommendation [Doc. #15] and incorporates it
herein. It is therefore ORDERED that the Plaintiff’s Motion for Summary Judgement [Doc. #4]
is DENIED without prejudice.

IT IS SO ORDERED.
s/ J. Michelle Childs
United States District Judge
Greenville, South Carolina
April 29, 2011