Garland v. MacDougall Correctional Institution

Filing 33

ORDER RULING ON REPORT AND RECOMMENDATION. Court adopts 29 Report and Recommendations, denies 14 Motion for Summary Judgment and request for default judgment filed by Ahmad Clarence Garland, and grants 13 Motion for Extension of Time, filed by MacDougall Correctional Institution. Signed by Honorable Joseph F Anderson, Jr on 11/3/08. (swel, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE DISTRICT OF SOUTH CAROLINA

A h m a d Clarence Garland, #238267,

) ) Petitioner, ) vs. ) ) W a rd e n , MacDougall Correctional ) In s titu tio n , ) ) Respondent. ) _________________________________ )

C iv il Action No. 4:08-1668-JFA-TER

ORDER

P e titio n e r Ahmad Garland, a state prisoner proceeding pro se, seeks habeas corpus re lie f under 28 U.S.C. § 2254 by way of a petition filed April 21, 2008. On June 26, 2008, a n order was issued authorizing service of process on the respondent by the Clerk of Court. O n August 18, 2008, the respondent filed a motion for an extension of time of thirty days to r e sp o n d to the petition (which was due on August 18, 2008). Petitioner then filed a request f o r entry of default and a motion for summary judgment on August 27, 2008. In an order filed September 10, 2008, the respondent was directed by the court to e x p la in in detail its August 18 motion for an extension. The respondent replied explaining th a t the delay and request for the extension was due to a heavy workload. Respondent also c o n te n d s that the petition is barred by the statute of limitations. Petitioner objected to the m o tio n and to the court's order. Thus, it appears respondent's motion for an extension of tim e and petitioner's request for default are ripe for review.

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T h e Magistrate Judge assigned to this action 1 has prepared a comprehensive Report a n d Recommendation wherein he recommends that petitioner's request for default and m o tio n for summary judgment should be denied, and that respondent's motion to extend time to respond to the petition should be granted. The Report sets forth in detail the relevant facts a n d standards of law on this matter, and the court incorporates such without a recitation. T h e petitioner was advised of his right to file objections to the Report and R e c o m m e n d a tio n . Petitioner responded by simply requesting that the court provide him a c o p y of the two cases cited by the Magistrate Judge in his Report and Recommendation. As th e courts are not required to provide free copies to litigants, the petitioner's request is d e n ie d . As the Magistrate Judge correctly notes in his Report, Rule 55(e) of the Federal Rules o f Civil Procedure, as well as applicable case law, entry of default is not warranted against th e respondent in this instance. A f te r carefully reviewing the applicable law, the record in this case, the Report and R e c o m m e n d a tio n , the court finds the Magistrate Judge's recommendation fairly and a c c u ra tely summarizes the facts and applies the correct principles of law. The court, th e re f o re , adopts the recommendation of the Magistrate Judge in full and incorporates this R e p o rt by specific reference.

The Magistrate Judge's review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02. The M a g i s tr a te Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the r e s p o n s i b i l it y to make a final determination remains with the court. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions of the Report to which specific objection is made and t h e court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit th e matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

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A cc o rd in g ly, respondent's motion for an extension of time is granted and petitioner's m o tio n for summary judgment and default judgment are denied. The Clerk shall return this c a se back to the assigned Magistrate Judge for further handling. IT IS SO ORDERED.

N o v em b er 3, 2008 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

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