Cypress v. South Carolina Department of Corrections

Filing 11

ORDER ADOPTING THE REPORT AND RECOMMENDATION, dismissing this matter without prejudice and without issuance and service of process, for 8 Report and Recommendations. Signed by Honorable Cameron McGowan Currie on November 22, 2011. (kbos)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION Tramaine S. Cypress, ) ) Plaintiff, ) ) v. ) ) South Carolina Department of Corrections, ) ) Defendant. ) ___________________________________ ) C/A NO. 3:11-2910-CMC-JRM OPINION and ORDER This matter is before the court on Plaintiff’s pro se complaint, filed in this court pursuant to 42 U.S.C. § 1983. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(d), DSC, this matter was referred to United States Magistrate Judge Joseph R. McCrorey for pre-trial proceedings and a Report and Recommendation (“Report”). On November 7, 2011, the Magistrate Judge issued a Report recommending that this matter be dismissed without prejudice and without issuance and service of process. The Magistrate Judge advised Plaintiff of the procedures and requirements for filing objections to the Report and the serious consequences if he failed to do so. Plaintiff filed objections to the Report on November 15, 2011. The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of any portion of the Report of the Magistrate Judge to which a specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by 1 the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b). After considering the record, the applicable law, the Report and Recommendation of the Magistrate Judge, and Plaintiff’s objections. the court agrees with the Report and its conclusions. Therefore, the court adopts and incorporates the Report by reference in this Order. Plaintiff contends that he does not understand how the South Carolina Department of Corrections (SCDC) is immune from suit, and that “I would like to proceed [ ] by filing against the State of South Carolina.” Obj. at 1 (ECF No. 10, filed Nov. 15, 2011). However, an attempt to file suit against the State of South Carolina would result in the same conclusion: The State and its agencies are immune from suit in federal court under the Eleventh Amendment. This matter is dismissed without prejudice and without issuance and service of process. IT IS SO ORDERED. s/ Cameron McGowan Currie CAMERON MCGOWAN CURRIE UNITED STATES DISTRICT JUDGE Columbia, South Carolina November 22, 2011 2

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