Cox v. State of South Carolina

Filing 17

ORDER ADOPTING THE REPORT AND RECOMMENDATION, dismissing the complaint with prejudice for frivolousness and deeming this dismissal a "strike" under 28 USC 1915(g), for 15 Report and Recommendation. Signed by Honorable Timothy M Cain on May 17, 2012. (kbos)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION Paul Leslie Cox, #75206, ) ) Plaintiff, ) ) v. ) ) ) The State of South Carolina, ) ) Defendant. ) ________________________________) C/A No. 3:11-3257-TMC ORDER Plaintiff, a state prisoner proceeding pro se, filed this action pursuant to 42 U.S.C. § 1983. This matter is before the court for review of the Report and Recommendation of the United States Magistrate Judge Joseph R. McCrorey made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a recommendation to this court. recommendation has no presumptive weight. The The responsibility to make a final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objections are made, and the court may accept, reject, or modify, in whole or in part, the Magistrate Judge’s recommendation or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1). Plaintiff was advised of his right to file objections to the Report and Recommendation. (Dkt. # 15 at 7). However, Plaintiff filed no objections to the Report and Recommendation. In the absence of objections to the Magistrate Judge’s Report and Recommendation, this court is not required to provide an explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, “in the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.’” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note). After a thorough review of the Report and the record in this case, the court adopts the Magistrate Judge's Report (Dkt. # 15) and incorporates it herein. It is therefore ORDERED that the Complaint is DISMISSED with prejudice for frivolousness and this dismissal is deemed a “strike” under 28 U.S.C. § 1915(g). See McLean v. United States of America, 566 F3d. 391, 399-400 (4th Cir. 2009) (noting that a dismissal for frivolousness that is rendered without prejudice may permit a strike designation). IT IS SO ORDERED. s/Timothy M. Cain United States District Judge Greenville, South Carolina May 17, 2012 NOTICE OF RIGHT TO APPEAL The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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