Huot v. Montana State Department of Child and Family Services et al

Filing 12

ORDER adopting 8 Report and Recommendation, denying 4 Motion to Set Aside, dismissing the action without prejudice. Signed by Honorable Mary Geiger Lewis on 8/29/2017. (cbru, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION SAFRON HUOT, Plaintiff, § § § vs. § CIVIL ACTION No. 3:17-1843-MGL § MONTANA STATE DEPARTMENT OF § CHILD AND FAMILY SERVICES; § MONTANA SUPREME COURT; DEER § LODGE COUNTY DISTRICT COURT OF § MONTANA; JUDGE RAY DAYTON; CAL § BOYAL; CINDY JOHNSON; DEER LODGE § MEDICAL CENTER; M.D. WAYNE R. § MARTIN; SUSANNE M. CLAGUE; BEN § KRAKOWKA; SUSAN DAY, Ph.D.; DAVE § FENCHAK; MARY JO FORTNER; and § ROGER FORTNER, § Defendants. § ORDER ADOPTING THE REPORT AND RECOMMENDATION, DISMISSING PLAINTIFF’S ACTION WITHOUT PREJUDICE AND WITHOUT ISSUANCE AND SERVICE OF PROCESS, AND DENYING PLAINTIFF’S MOTION TO SET ASIDE Plaintiff filed this case as per 28 U.S.C. § 1915. The matter is before the Court for review of the Report and Recommendation (Report) of the United States Magistrate Judge suggesting: (1) this lawsuit be dismissed without prejudice and without issuance and service of process and, (2) Plaintiff’s “motion to set aside adoption and reinstate full parental rights” be terminated. The Report was made in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of South Carolina. 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 the Court. Mathews v. Weber, 423 U.S. 261, 270 (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). The Magistrate Judge filed the Report on August 11, 2017, but Plaintiff failed to file any objections. “[I]n 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). Moreover, a failure to object waives appellate review. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985). After a thorough review of the Report and the record in this case employing the standard set forth above, the Court adopts the Report and incorporates it herein. Therefore, it is the judgment of the Court this lawsuit is DISMISSED WITHOUT PREJUDICE and without issuance and service of process. Consequently, Plaintiff’s “motion to set aside adoption and reinstate full parental rights” is RENDERED MOOT. IT IS SO ORDERED. Signed this 29th day of August, 2017, in Columbia, South Carolina. s/ Mary Geiger Lewis MARY GEIGER LEWIS UNITED STATES DISTRICT JUDGE ***** NOTICE OF RIGHT TO APPEAL Plaintiff is hereby notified of the right to appeal this Order within thirty days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure. 2

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