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, )

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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.

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