Montgomery v. Willis et al

Filing 14

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant. It is therefore ORDERED that the Complaint in the above-captioned case is DISMISSED without prejudice and without issuance and service of process. Signed by Honorable Timothy M Cain on 12/7/2011.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Terrell Rhodes Montgomery,
Plaintiff,
v.
Mount Pleasant Police Department;
Detective Adam Mason Willis, MPPD;
Detective Simmons, MPPD; and
Donald Higgins Howe, Esquire,
Defendants.
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C.A. No. 2:11-0478-TMC

ORDER

Terrell Rhodes Montgomery (Plaintiff), a pro se inmate, filed this civil action against the
Defendants pursuant to 42 U.S.C. § 1983. This matter is before the court on the Magistrate Judge's Report
and Recommendation (Report). (Dkt. No. 9.) The Report, filed on April 19, 2011, recommends that the
court dismiss the Complaint in the above-captioned case without prejudice and without issuance and
service of process. The Report sets forth in detail the relevant facts and legal standards on this matter, and
the court incorporates the Magistrate Judge's recommendation here without a recitation.
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 (Dkt. # 9 at
6). 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 (Dkt. # 9) and incorporates it herein. It is
therefore ORDERED that the Complaint in the above-captioned case is DISMISSED without prejudice
and without issuance and service of process.
IT IS SO ORDERED.
s/Timothy M. Cain________
Timothy M. Cain
United States District Judge
Greenville, South Carolina
December 7, 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.