Walker v. South Carolina, State of et al

Filing 21

ORDER RULING ON 19 REPORT AND RECOMMENDATION adopting the R&R and dismissing this action without prejudice and without issuance and service of process Signed by Honorable Richard M Gergel on 10/24/2013. (sshe, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Virgie P. Walker,

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Plaintiff,
v.

Honorable Judge Mikell R. Scarborough;
Korn Law Finn, PA; Paralegal Elizabeth A.
Koslarek; Reverse Mortgage Solutions Inc.
for the benefit of Bank of America;
Attorney Dean A. Hayes,
Defendants.

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1013 Ocr 24 p 1= Sq
NO.2:13-cv-1918-RMG

ORDER

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This matter comes before the Court on the Report and Recommendation of the
Magistrate Judge ("R&R") recommending the Court dismiss this action without prejudice and
without issuance and service of process pursuant to 28 U.S.C. § 1915. For the reasons set forth
below, the Court agrees with and adopts the R&R as the order ofthe Court.
Background

Virgie P. Walker, proceeding pro se and in forma pauperis, filed this action seeking
reversal of a state-court foreclosure order and monetary damages.

Pursuant to 28 U.S.C.

§ 636(b) and Local Civil Rule 73.02(B)(2)(e) DSC, this case was assigned to a Magistrate Judge

for all pretrial proceedings.

Under established local procedure in this judicial district, the

Magistrate Judge conducted a careful review of the complaint pursuant to the provisions of 28
U.S.c. § 1915 and in light of the following precedents: Neitzke v. Williams, 490 U.S. 319 (1980);

Estelle v. Gamble, 429 U.S. 97 (1976); Haines v. Kerner, 404 U.S. 519 (1972); and Gordon v.
Leeke, 574 F.2d 1147 (4th Cir. 1978). Following this review, the Magistrate Judge issued the

present R&R recommending this case be dismissed for failure to state a claim. (Dkt. No. 19).
Plaintiff failed to file timely objections to the R&R.
Legal Standard

The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making
a de novo detennination of those portions of the R&R to which specific objection is made.
Additionally, the Court may "accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l). This Court may also
"receive further evidence or recommit the matter to the magistrate judge with instructions." ld.
Under 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss an action filed in forma

pauperis if it detennines that the action: "(i) is frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief."
In reviewing these pleadings, the Court is mindful of Plaintiffs pro se status. This Court
is charged with liberally construing the pleadings of a pro se litigant. See, e.g., De'Lonta v.

Angelone, 330 F.3d 630,633 (4th Cir. 2003). The requirement of a liberal construction does not
mean, however, that the Court can ignore a plaintiffs clear failure to allege facts that set forth a
cognizable claim, or that a court must assume the existence of a genuine issue of material fact
where none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012).

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Discussion

After reviewing the record and the R&R, the Court finds the Magistrate Judge applied
sound legal principles to the facts of this case and therefore agrees with and adopts the R&R as
the order of the Court. The Court finds no clear error with the Magistrate Judge's findings that
Plaintiff fails to state claim under the doctrines of Rooker-Feldman, judicial immunity, and
because he fails to plead facts sufficient to bring this action within the jurisdiction of this Court.
See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
Conclusion

For the reasons set forth above, the Court agrees with and adopts the R&R (Dkt. No. 19)
as the order of the Court and therefore dismisses this action without prejudice and without
issuance and service of process.

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AND IT IS SO ORDERED.

United States District Court Judge

October t ("/, 2013
Charleston, South Carolina

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