Cox v. Wilson

Filing 16

ORDER ADOPTING THE REPORT AND RECOMMENDATION, denying plaintiff's motion to proceed in forma pauperis and giving plaintiff 21 days in which to pay the $350.00 filing fee. FURTHER ORDERED that if plaintiff fails to ti mely pay the filing fee, the complains shall be dismissed without prejudice under the "three strikes" rule of 28 USC 1915(g), for 8 Report and Recommendation, Motion denied: 2 MOTION for Leave to Proceed in forma pauperis (Restricted Access) filed by Paul Leslie Cox., (Filing Fee due by 7/22/2013.) Signed by Honorable Timothy M Cain on July 1, 2013. (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. ) ) Attorney General Allen Wilson, ) ) Defendant. ) ____________________________________) C.A. No. 3:13-857-TMC 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. (ECF. No. 2).1 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 April 29, 2013, 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. (ECF No. 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). 1 The Plaintiff filed a Notice of Appeal as to the court’s order denying his request to proceed in forma pauperis. (ECF No. 10). However, the appeal was dismissed for failure to prosecute pursuant to Local Rule 45. (ECF No. 13). The Plaintiff was advised of his right to file objections to the Report (ECF No. 8 at 5). 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 (ECF No. 8) and incorporates it herein. It is therefore ORDERED that the Plaintiff's Motion for Leave to Proceed in forma pauperis (ECF No. 2) is DENIED and that the Plaintiff shall have twenty-one (21) days from the date of this order to pay the $350.00 filing fee. 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 the Clerk enter final judgment. IT IS SO ORDERED. s/Timothy M. Cain United States District Judge Anderson, South Carolina July 1, 2013 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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