Church v. Watts et al

Filing 27

ORDER ADOPTING THE REPORT AND RECOMMENDATION, granting petitioner's motion to dismiss without prejudice and denying respondents' motion for summary judgment as moot, for 26 Report and Recommendations. Signed by Honorable Henry F Floyd on February 25, 2010. (kbos)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION EUGENE R. CHURCH, #05638-017, Petitioner, vs. HARRELL WATTS, Administrator, et. al. Respondents. § § § § § § §

CIVIL ACTION NO. 3:09-1339-HFF-JRM

ORDER Petitioner filed this action seeking a writ of mandamus. Petitioner is proceeding pro se. The matter is before the Court for review of the Report and Recommendation (Report) of the United States Magistrate Judge suggesting that Petitioner's motion to dismiss without prejudice be granted and that Defendant's motion for summary judgment be denied as moot. The Report was made in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1). The Magistrate Judge filed the Report on February 2, 2010, but neither party filed any objections to the Report. In the absence of such objections, the Court is not required to give any

explanation for adopting the recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Moreover, a failure to object waives appellate review. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985). After a thorough review of the Report and the record in this case pursuant to the standard set forth above, the Court adopts the Report and incorporates it herein. Therefore, it is the judgment of the Court that Petitioner's motion to dismiss without prejudice be GRANTED and that Defendant's motion for summary judgment be denied as MOOT. IT IS SO ORDERED. Signed this 25th day of February, 2010, in Spartanburg, South Carolina.

s/ Henry F. Floyd HENRY F. FLOYD UNITED STATES DISTRICT JUDGE

***** NOTICE OF RIGHT TO APPEAL The parties are hereby notified of the right to appeal this Order within 60 days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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