Mayhew v. Duffy

Filing 14

ORDER adopting 9 Report and Recommendation of Magistrate Judge Bristow Marchant. The Court dismisses this action without prejudice. Signed by Honorable Richard M Gergel on 2/4/2014. (sshe, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION Ronald Banks Mayhew, Plaintiff, v. Judge Patrick Michael Duffy, Defendant. ) ) ) ) ) ) ) ) ) ) No. 2: 14-cv-24-RMG ORDER This matter comes before the Court on the Report and Recommendation ("R&R") of the Magistrate Judge recommending that this case be dismissed without prejudice. (Dkt. No.9). For the reasons set forth below, the Court agrees with and adopts the R&R as the order of the Court. Background Plaintiff filed this action pro se seeking damages and vacation of Judge Duffy's dismissal of a prior action, Mayhew v. ILA Local 1771, No.2: 11-cv-3226-PMD, because Judge Duffy lacked the appearance of impartiality because his nephew worked for a defendant in that case. (Dkt. No. I). 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. The Magistrate Judge then conducted an initial review of the pleading to ensure it was not frivolous. See Fitzgerald v. First E. Seventh St. Tenants Corp., 121 F.3d 362, 363-64 (2d Cir. 2000). The Magistrate Judge then issued the present R&R recommending the case be dismissed as frivolous. (Dkt. No.9). Plaintiff then filed a response to the R&R. (Dkt. No. 12). 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 determination 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." Id. Discussion In his response, Plaintiff does not object to the R&R but rather accepts the recommendation of dismissal of this action. (Dkt. No. 12). After review of the record, the R&R, and Plaintiffs response, the Court finds no clear error and therefore wholly adopts the R&R as the order of the Court. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.2005) Conclusion As set forth above, the Court agrees with and wholly adopts the R&R as the order of the Court. (Dkt. No.9). AND IT IS SO ORDERED. Richard Mark Ge e United States Distric Court Judge February 1.-1,2014 Charleston, South Carolina 2

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