Spencer v. Drew

Filing 15

ORDER ADOPTING THE REPORT AND RECOMMENDATION, dismissing petitioner's complaint without prejudice and without issuance and service of process, for 11 Report and Recommendations. Signed by Honorable G Ross Anderson, Jr on December 2, 2008. (kbos)

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION Marvin Spencer, ) ) Petitioner, ) ) v. ) ) Warden Darlene Drew, ) ) Respondent. ) ______________________________________ ) C/A No.: 08-cv-3150 ORDER (Written Opinion)

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. filed November 3, 2008. The magistrate recommends

dismissing petitioner's complaint without prejudice and without issuance and service of process because a mandamus action is not appropriate under the circumstances of this case. Petitioner filed this petition for seeking a writ of mandamus against the warden of the prison institution where he is incarcerated. He alleged that his constitutional right to access to the courts was being violated as the law library printer was broken and it was the only way to get printed versions of case law. He stated that without the printer, he could not help his attorney prepare for a pending legal matter. Petitioner 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 Page 1 of 3

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

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). Petitioner filed a response to the Report and Recommendation stating that he does not oppose dismissal of the action. The

petitioner stated in his response that the prison instituted a system to allow inmates to obtain case law and "because the institution decision to allow a process by which Spencer can obtain legal copies . . . the issue is now moot." Response P. 2. 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.

Page 2 of 3

IT IS THEREFORE ORDERED that petitioner's complaint be DISMISSED without prejudice and without issuance and service of process.

IT IS SO ORDERED.

December 2 , 2008 Anderson, South Carolina

NOTICE OF RIGHT TO APPEAL Pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure, Plaintiff has the right to appeal this Order within thirty (30) days from the date of its entry. Failure to meet this deadline, as modified by Rule 4 of the Federal Rules of Appellate Procedure, will waive the right to appeal.

Page 3 of 3