Cox v. Hunt et al

Filing 13

ORDER ADOPTING THE REPORT AND RECOMMENDATION, giving plaintiff 21 days in which to pay the filing fee. FURTHER ORDERED that in the event plaintiff fails to timely pay the filing fee, the complaint shall be dismissed without pr ejudice under the "three strikes" rule of 28 USC 1915(g), for 9 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 7/10/2013.) Signed by Honorable Timothy M Cain on June 17, 2013. (kbos)

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

#75206,
Plaintiff,

v.
Gov. Jim Hunt, NC; United States,
Defendants.

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C/A No. 3:13-1216-TMC
ORDER

Plaintiff, Paul Leslie Cox (“Plaintiff”), a state prisoner proceeding pro se, brings this
action pursuant to 42 U.S.C. § 1983. (ECF No. 1). Plaintiff also filed a Motion for Leave to
Proceed in forma pauperis under 28 U.S.C. § 1915. (ECF No. 2).
On May 31, 2013, Magistrate Judge Joseph R. McCrorey issued a Report and
Recommendation ("Report") recommending that 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. 9).1

The Magistrate Judge provided Plaintiff a notice

advising him of his right to file objections to the Report. (ECF No. 9 at 6). On June 13, 2013,
Plaintiff filed objections to the Magistrate Judge's Report. (ECF No. 11.)
The Magistrate Judge makes only a recommendation to the 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, 270-71 (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).

1

In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2), D.S.C., all pre-trial
proceedings were referred to a Magistrate Judge.

The court is obligated to conduct a de novo review of every portion of the Magistrate
Judge’s report to which objections have been filed. Id. However, the court need not conduct a
de novo review when a party makes only “general and conclusory objections that do not
direct the court to a specific error in the magistrate’s proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a
timely filed, specific objection, the Magistrate Judge’s conclusions are reviewed only for clear
error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
As noted above, Plaintiff filed objections to the Report which the court has carefully
reviewed. However, Plaintiff’s objections provide no basis for this court to deviate from the
Magistrate Judge’s recommended disposition.
After a thorough review of the Report and the record in this case, the court adopts the
Magistrate Judge's Report (ECF No. 9) and incorporates it herein. It is therefore ORDERED
that Plaintiff's Motion for Leave to Proceed in forma pauperis (ECF No. 2) is DENIED and that
Plaintiff shall have twenty-one (21) days from the date of this order to pay the $350 filing fee.
It is further ORDERED that, in the event 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
June 17, 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.