Smart v. Tesner et al

Filing 7

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 5 Report and Recommendations. It is ordered that plaintiff's complaint be dismissed without prejudice and without issuance and service of process. It is further ordered that this case be deemed a "strike" for purposes of the "three strikes" rule of 28 U.S.C. 1915(g). Signed by Judge G Ross Anderson Jr on 3/14/06. (kmca)

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Smart v. Tesner et al Doc. 7 3:06-cv-00451-GRA Date Filed 03/14/2006 Entry Number 7 Page 1 of 3 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA GREENVILLE DIVISION Robert Dale Smart, #272017 Plaintiff, C/A No. 3:06-451-GRA-BHH v. John Edward "Buddy" Tesner; Connie Jeanette "Jeanie" Tesner, Defendants. ORDER This matter is before the Court for a review of the magistrate's Report and Recommendation made in accordance with 28 U.S.C. 636(b)(1)(B) and Local Rule 73.02(B)(2)(d), D.S.C., and filed February 28, 2006. Plaintiff brought this suit pursuant to 42 U.S.C. 1983. The magistrate recommends dismissing Plaintiff's complaint without prejudice and without issuance and service of process. Plaintiff is proceeding pro se. This Court is required to construe pro se pleadings liberally. Such pleadings are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). This Court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. Haines v. Kerner, 404 U.S. 519, 520 (1972). The magistrate makes only a recommendation to this Court. The 1 Dockets.Justia.com 3:06-cv-00451-GRA Date Filed 03/14/2006 Entry Number 7 Page 2 of 3 recommendation has no presumptive weight, and 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 Report and Recommendation to which specific objection is made, and this Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. 636(b)(1). This Court may also "receive further evidence or recommit the matter to the magistrate with instructions." Id. In the absence of specific objections to the Report and Recommendation, this Court is not required to give any explanation for adopting the recommendation. Camby v. Davis, 718 F.2d 198 (4th. Cir. 1983). Plaintiff filed an objection to the Report and Recommendation on March 13, 2006. Plaintiff's sole objection claims that the magistrate erred by not allowing him the opportunity to cure or amend his Complaint. After a review of the record, it is clear to this Court that the Plaintiff has failed to state a claim that is currently cognizable in a federal district court. See Weller v. Department of Social Servs., 901 F.2d 387 (4th Cir. 1990). Therefore the Plaintiff's objection is without merit and since this dismissal is without prejudice, Plaintiff will have ample opportunities to cure any defects in a later pleading. After a review of the magistrate's Report and Recommendation, this Court finds that the report is based upon the proper law. Accordingly, the Report and Recommendation is accepted and adopted in its entirety. 2 3:06-cv-00451-GRA Date Filed 03/14/2006 Entry Number 7 Page 3 of 3 IT IS THEREFORE ORDERED that Plaintiff's complaint be DISMISSED without prejudice and without issuance and service of process. IT IS FURTHER ORDERED that this case be deemed a "strike" for purposes of the "three strikes" rule of 28 U.S.C 1915(g). IT IS SO ORDERED. Anderson, South Carolina March 14, 2006. NOTICE OF RIGHT TO APPEAL Plaintiff has the right to appeal this Order within thirty (30) days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure. Failure to meet this deadline, as modified by Rule 4 of the Federal Rules of Appellate Procedure, will waive the right to appeal. 3

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