Cox v. Ozmint

Filing 10

ORDER ADOPTING THE REPORT AND RECOMMENDATION, giving plaintiff 21 days in which to pay the $350 filing fee, for 8 Report and Recommendations, (Filing Fee due by 2/24/2012.), Motion denied: 2 MOTION for Leave to Proceed in forma pauperis (Restricted Access) filed by Paul Leslie Cox, Signed by Honorable Timothy M Cain on February 3, 2012. (kbos)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Paul Leslie Cox,

#75206,

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Plaintiff,
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v.
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Jon E. Ozmint, Director SCDC,
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Defendant.
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____________________________________)

C.A. No. 3:11-3404-TMC

OPINION and ORDER

Plaintiff, an inmate proceeding pro se, filed this action pursuant to 42 U.S.C. § 1983.
Plaintiff has filed a Motion for Leave to Proceed in forma pauperis under 28 U.S.C. § 1915. (Dkt.
# 2). Pursuant 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(d), D.S.C., all pre-trial
proceedings were referred to a Magistrate Judge. On January 11, 2012, Magistrate Judge Joseph
R. McCrorey issued a Report and Recommendation (“Report”) recommending that the Plaintiff’s
Motion to Proceed in forma pauperis be denied and that Plaintiff’s Complaint be dismissed
without prejudice if he fails to timely pay the full filing fee because Plaintiff is subject to the “three
strikes” rule of the Prison Litigation Reform Act, and he does not allege that he is under imminent
danger of serious physical injury. (Dkt. # 8). The Report sets forth in detail the relevant facts
and legal standards on this matter, and the court incorporates the Report without a recitation.
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 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 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).
The Plaintiff was advised of his right to file objections to the Report (Dkt. # 8 at 6).
However, Plaintiff filed no objections to the Report and Recommendation.

In the absence of objections to the Magistrate Judge’s Report, 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).
Furthermore, failure to file specific written objections to the Report results in a party's waiver of
the right to appeal from the judgment of the district court based upon such recommendation. 28
U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir.
1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
After a thorough review of the Report and the record in this case, the court adopts the
Magistrate Judge's Report (Dkt. # 8) and incorporates it herein. It is therefore ORDERED that the
Plaintiff's Motion for Leave to Proceed in forma pauperis (Dkt. # 2) is DENIED and that the
Plaintiff shall have twenty-one (21) days from the date of this Order to pay the $350 filing fee, and
that the Office of the Clerk of Court shall withhold entry of judgment until such time expires.

It

is further ORDERED that in the event the Plaintiff fails to timely pay the filing fee, the Complaint
shall be DISMISSED without prejudice under the “three strikes” rule of 28 U.S.C. § 1915(g) and
that the Clerk enter the required final judgment at the close of the twenty-one (21) day period
permitted for payment of the filing fee.
IT IS SO ORDERED.
s/Timothy M. CainM. Cain
United States District Judge
Greenville, South Carolina
February 3, 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.