Demos v. US Secretary of Defense, The et al

Filing 15

ORDER adopting 8 Report and Recommendation of Magistrate Judge Bruce Howe Hendricks and denying 2 Motion for Leave to Proceed in forma pauperis. Plaintiff shall have twenty-one (21) days from the date of this order to pay the $350 filing fee and the $50 administrative fee. It is further ORDERED that, in the event Plaintiff fails to timely pay the filing fee, the Complaint shall be DISMISSED without prejudice under the three strikes rule of 28 U.S.C. § 1915(g) and the Clerk enter final judgment. Signed by Honorable Timothy M Cain on 6/28/13.(hhil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
John R. Demos, #287455,
a/k/a John Robert Demos, Jr.,

)
)
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Plaintiff,
)
)
v.
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The U.S. Secretary of Defense; C.I.A. )
Director; President, Barack H. Obama; )
The U.S. Attorney General; Chief of the )
C.I.A.; The Governor of the State of
)
Washington; David Petraus; Eric Holder; )
Hillary Clinton; Leon Panetta,
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)
Defendants.
)
________________________________)

C.A. No. 2:13-1-TMC

ORDER

Plaintiff, an inmate proceeding pro se, filed this action pursuant to 42 U.S.C. §
1983. Plaintiff has filed a Motion for Leave to Proceed in forma pauperis under 28 U.S.C.
§ 1915.

(ECF No. 2).

Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule

73.02(B)(2)(d), D.S.C., all pre-trial proceedings were referred to a Magistrate Judge. On
May 16, 2013, Magistrate Judge Bruce Howe Hendricks issued a Report and
Recommendation (“Report”) recommending that the Plaintiff’s Motion to Proceed in forma
pauperis be denied and that Plaintiff’s Complaint be dismissed without prejudice if he fails
to timely pay the full filing fee because Plaintiff is subject to the “three strikes” rule of the
Prison Litigation Reform Act. (ECF No. 8). The Report sets forth in detail the relevant
facts and legal standards on this matter, and the court incorporates the Report without a
recitation.
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 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).
The Plaintiff was advised of his right to file objections to the Report (ECF No. 8 at
9). However, Plaintiff filed no objections to the Report and Recommendation.
In the absence of objections to the Magistrate Judge’s Report, 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 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 the record in this case, the court adopts
the Magistrate Judge's Report (ECF No. 8) and incorporates it herein. It is therefore
ORDERED that Plaintiff's Motion for Leave to Proceed in forma pauperis (ECF No. 2) is
DENIED and that Plaintiff shall have twenty-one (21) days from the date of this order to
pay the $350 filing fee and the $50 administrative fee. It is further ORDERED that, in the
event Plaintiff fails to timely pay the filing fee, the Complaint shall be DISMISSED without

prejudice under the “three strikes” rule of 28 U.S.C. § 1915(g) and the Clerk enter final
judgment.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
June 28, 2013

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.