Lester v. Perry Correctional Institution et al

Filing 15

ORDER RULING ON REPORT AND RECOMMENDATIONS. The court adopts the Report 11 and incorporates it herein. It is therefore ORDERED that the Complaint is DISMISSED without prejudice. Signed by Honorable Timothy M Cain on 05/30/2012. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Steve Lester,
Plaintiff,
v.
Perry Correctional Institution;
Officer Fish; Officer Alwren; and
Cpt. Randal,
Defendants.
_______________________________

)
)
)
)
)
)
)
)
)
)
)
)

C/A No. 4:12-971-TMC
OPINION & ORDER

Plaintiff, Steve Lester (“Plaintiff”), a state prisoner proceeding pro se and in forma
pauperis brings this action pursuant to 42 U.S.C. § 1983. In accordance with 28 U.S.C. §
636(b)(1)(B) and Local Rule 73.02(B)(2)(d), D.S.C., all pre-trial proceedings were referred to a
Magistrate Judge. On May 10, 2012, Magistrate Judge Thomas E. Rogers, III issued a Report
and Recommendation ("Report") recommending that the Complaint be dismissed with
prejudice. (Dkt. # 11). The Magistrate Judge provided Plaintiff a notice advising him of his
right to file objections to the Report. (Dkt. # 11 at 7). Plaintiff filed objections to the Magistrate
Judge's Report on May 21, 2012. (Dkt. # 13).
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).
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).
The Magistrate Judge recommended that the Complaint be dismissed with prejudice
based upon the Plaintiff having previously filed the same claim against the same Defendants in
Civil Action No. 4:11-1388. As noted above, Plaintiff filed objections to the Report which the
Court has carefully reviewed. However, the Plaintiff’s objections provide no basis for this court
to deviate from the Magistrate Judge’s recommended disposition. The objections are nonspecific, unrelated to the dispositive portions of the Report or merely restate Plaintiff’s claims.
After a thorough review of the Report and the record in this case pursuant to the
standard set forth above, the Court finds Plaintiff’s objections are without merit. Accordingly,
the court adopts the Report and incorporates it herein. It is therefore ORDERED that the
Complaint is DISMISSED without prejudice.1
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
May 30, 2012
Greenville, South Carolina

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.

1

The Magistrate Judge recommended a dismissal with prejudice. However, the Court
dismisses this complaint without prejudice.