McDaniels v. Hodges et al

Filing 29

ORDER accepting 24 Report and Recommendation of Magistrate Judge Mary Gordon Baker; denying 8 Motion "Requesting Defendant Hodges to Reimburse Plaintiff Filing/Postage/Copy Fees"; denying 15 Motion for Reimb ursement of Filing Fees; denying 27 Motion to reverse the ruling that McDaniels shall pay the filing fee of $350.00. Plaintiff's complaint is DISMISSED without prejudice and without issuance and service of process. Signed by Chief Judge Terry L Wooten on 6/4/2015.(ssam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Kevin W. McDaniels,

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Plaintiff,
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vs.
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Judge Shiva Hodges and Judge Derham
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Cole,
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Defendants.
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______________________________________ )

C/A No.: 2:14-cv-04636-TLW

ORDER

Plaintiff Kevin W. McDonald, proceeding pro se and in forma pauperis, filed this action
on December 8, 2014, alleging violation of his constitutional rights pursuant to 42 U.S.C. §
1983. (ECF No. 1). This matter now comes before this Court for review of the Report and
Recommendation (“the Report”) filed on April 27, 2015, by Magistrate Judge Mary Gordon
Baker (ECF No. 24) to whom this case was previously assigned. In the Report, the Magistrate
Judge recommends that the Court summarily dismiss the complaint in this case without prejudice
and without issuance and service of process. The Report also addresses two motions requesting
reimbursement of filing fees, copy fees, and postage, recommending that they be denied. (ECF
Nos. 8, 15). Plaintiff filed objections to the Report on May 7, 2015. (ECF No. 26). Also on May
7, 2015, Plaintiff filed a motion seeking reversal of the Magistrate Judge’s ruling that Plaintiff
must pay filing fees of $350.00. (ECF No. 27).
The Court has reviewed the Report and the objections. In conducting this review, the
Court applies the following standard:
The magistrate judge makes only a recommendation to the Court, to which any
party may file written objections.... The Court is not bound by the
recommendation of the magistrate judge but, instead, retains responsibility for the
final determination. The Court is required to make a de novo determination of
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those portions of the report or specified findings or recommendation as to which
an objection is made. However, the Court is not required to review, under a de
novo or any other standard, the factual or legal conclusions of the magistrate
judge as to those portions of the report and recommendation to which no
objections are addressed. While the level of scrutiny entailed by the Court's
review of the Report thus depends on whether or not objections have been filed,
in either case the Court is free, after review, to accept, reject, or modify any of the
magistrate judge's findings or recommendations.
Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992)
(citations omitted).
In light of the standard set forth in Wallace, the Court has reviewed, de novo, the Report
and the objections. After careful review of the Report and objections thereto, the Court hereby
ACCEPTS the Report. For the reasons stated in the Report, the Plaintiff’s objections (ECF No.
27) are OVERRULED.1 The Plaintiff’s complaint is DISMISSED without prejudice and
without issuance and service of process. Furthermore, the Plaintiff’s two motions requesting
reimbursement of filing fees, copy fees, and postage, are DENIED.
The Court has also reviewed the Plaintiff’s motion seeking reversal of the Magistrate
Judge’s ruling that Plaintiff must pay filing fees of $350.00. (ECF No. 27). The Prison Litigation
Reform Act (PLRA) of 1996 permits a prisoner to file a civil action without prepayment of fees
or security but requires the prisoner “to pay the full amount of the filing fee” as funds are
available. See 28 U.S.C. § 1915(a), (b). As a result, Plaintiff’s motion is DENIED.
IT IS SO ORDERED.

s/Terry L. Wooten
Chief United States District Judge

June 4, 2015
Columbia, South Carolina

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To the extent Plaintiff alleges that he is actually innocent (see ECF No. 1), the Plaintiff has not provided the Court
with any newly discovered evidence. See McQuiggin v. Perkins, 133 S. Ct. 1924, 1933 (2013) (noting that actual
innocence “applies to a severely confined category: cases in which new evidence shows ‘it is more likely than not
that no reasonable juror would have convicted [the petitioner].’”

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