Poux v. FCI Bennettsville SC et al

Filing 23

ORDER RULING ON REPORT AND RECOMMENDATIONS. The court adopts the Report and the recommendations of the Magistrate Thomas E. Rogers, III. ORDERED that the complaint is DISMISSED without prejudice and without issuance and service of process. Signed by Honorable Timothy M Cain on 12/28/2011. (dsto, )

IN THE UNITED STATES DISTRlCT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

FLORENCE DIVISION

Ernesto Poux, Jr.,

)
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Plaintiff,
)
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v.
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D. Drew, Warden; I Schultz, A W; G. Del Re,
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Captain; A. Starcher, SIS; J. Comstock, DHO;
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A Fanucci, Lt.; 1. Swann, Case Manager;
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N. Lugo, Lt.; S. Lewis, Rec. CIO; 1. Cann, SIS;
C. Harding, Unit Manager, Lt. Major; P A. Osorio; )
1. Leamon, Counselor; John Does 1-6;
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Jane Does 1-6,
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Defendants.
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)
~ Ernesto Poux, Jr. (Poux), proceeding pro

CIA No. 4:11-2195-TMC

~

ORDER

se and in/orma pauperis, filed this action pursuant

to Bivens v. Six Unknown NamedAgents o/Federal Bureau o/Narcotics, 403 U.S. 388, 397 (1971).
(Dkt. No. I.) The case is before the court for review of the Report and Recommendation (Report) of
the United States magistrate judge, made in accordance with 28 U.S.c. § 636(b)(1) and Local Civil
Rule 73.02 of the District of South Carolina, which recommends dismissing Poux's complaint
without prejudice and without issuance and service of process. (Dkt. No. 15.)1 The court adopts the
Report and dismisses the complaint without prejudice and without issuance and service of process.
Poux is a federal prisoner, and his claims allegedly arOSe during his incarceration at FCI
Bennettsville, a facility of the Federal Bureau of Prisons in South Carolina. As noted in the Report,
in the section of the complaint titled, "Statement of Claim," Poux writes, "See attachments 4; 24-30;
50-52, 8; (11-13; 81-83 these attchs BOP' staff commit perjury)." The attachments consist of 80

The magistrate judge's recommendation has no presumptive weight, and the responsibility
for making a final determination remains with the United States District 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. The court may accept, reject, or modify,
in whole or in part, the recommendation made by the magistrate judge or recommit the matter with
instructions. 28 U.S.C. § 636(b)(1).

pages of documents with no indication as to how these documents relate to any alleged
constitutional claims. Poux does hot explain which constitutional claims he is attempting to bring
against each defendant. (Okt. No. 15 at 1.) The magistrate judge recommended that the complaint
be dismissed without prejudice and without issuance and service of process because the complaint
failed to state a claim for which relief could be granted. (Okt. No. 15 at 7.) (liThe Complaint's
conclusory statement of issues, along with the specific pages referenced in the statement of claim,
are not sufficient factual allegations to state a Bivens claim. ")
Poux was advised of his right to file objections to the Report (Dkt. No. 15 at 10), and he
timely filed what the court will construe as objections (Okt. No 19). However, Poux's "objections"
consisted of a request for the case to be assigned to a different magistrate judge, some repetition of
previous statements contained in hiscompiaint, and some attachments. (Okt. No. 19.) None ofthese
can be construed as a specific objection. Because Poux failed to file specific objections, the court is
not required to explain its decision. 28 U.S.c. 646(b)(1) ("[The district court] shall make a de novo
determination of those portions of the report ... to which objectio.n is made. If) (emphasis added);
see also United States v. Midgette, 478 F.3d 616 (4th Cir. 2007) ("[A] party ... waives a right to

appellate review of particular issues by failing to file timely objections specifically directed to those
issues.").
Therefore, after a thorough review of the record and Report according to the standard set
forth in this order, the court adopts the Report and the recommendations therein. (Dkt. No. 15.)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), it is therefore
ORDERED that the complaint is DISMISSED without prejudice and without issuance and

service of process. The plaintiff is advised to take notice of the important notice on the following
page.
IT IS SO ORDERED.

s/Timothy M. Cain
United States District Judge

Greenville, South Carolina
December 28,2011
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.