Cuyler v. Department of the Army

Filing 13

ORDER RULING ON REPORT AND RECOMMENDATION adopting 9 Report and Recommendation, dismissing this action with prejudice. Signed by Honorable Cameron McGowan Currie on 9/15/2014. (cbru, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
James M. Cuyler,

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Plaintiff,
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v.
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Department of the Army,
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Defendant.
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_________________________________________ )

C/A NO. 3:14-3228-CMC-SVH

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)(e), DSC, this
matter was referred to United States Magistrate Judge Shiva V. Hodges for pre-trial proceedings and
a Report and Recommendation (“Report”). On August 21, 2014, the Magistrate Judge issued a
Report recommending that Plaintiff’s complaint be dismissed 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 has filed no
objections and the time for doing so has expired.
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

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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, and the Report and Recommendation of the
Magistrate Judge, the court agrees with the conclusions of the Magistrate Judge. Accordingly, the
court adopts and incorporates the Report and Recommendation by reference in this Order.
The Report concludes that the complaint should be dismissed “without service of process”
without specifically noting whether dismissal should be with or without prejudice. See Report at 7,
ECF No. 9. As noted in the court’s dismissal of Cuyler v. Department of the Army, D.S.C. Civil
Action No. 3:10-1561-CMC-JRM (Cuyler II), that complaint was dismissed “with prejudice to
pursuit of the same or related claims in this court but without prejudice to pursuit of the same or
related claims in a more appropriate forum.” Culyer II, ECF No. 15 at 5. Even as an attempt to
“reopen” Plaintiff’s first case (D.S.C. Civil Action No. 3:08-3261-CMC-JRM), this matter
constitutes a “pursuit of the same or related claims in this court.” Accordingly, this matter is
dismissed with prejudice and without issuance and service of process.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
SENIOR UNITED STATES DISTRICT JUDGE

Columbia, South Carolina
September 15, 2014

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