Lester v. Perry Correctional Institution et al

Filing 16

ORDER RULING ON REPORT AND RECOMMENDATION. The court adopts the Report 10 and incorporates it herein. It is therefore ORDERED that the Plaintiffs federal claims are DISMISSED with prejudice for frivolousness and this dismissal is deemed a strike under 28 U.S.C. § 1915(g). Signed by Honorable Timothy M Cain on 11/28/2012. (dsto, )

1IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Steve Lester,

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Plaintiff,
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v.
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Perry Correctional Inst.; Cpt. Randall; )
Office Fish; Office Alwren,
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Defendants.
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_______________________________ )

C/A No. 4:12-3038-TMC

OPINION & ORDER

Plaintiff, Steve Lester (“Plaintiff”), a state prisoner proceeding pro se brings this
action under 42 U.S.C. § 1983. Plaintiff, an inmate at Perry Correctional Institution, filed
this action in forma pauperis under 28 U.S.C. § 1915.
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 October 26,
2012, Magistrate Judge Thomas E. Rogers, III issued a Report and Recommendation
("Report") recommending that the Complaint be dismissed with prejudice as frivolous.
(Dkt. # 10). The Magistrate Judge provided Plaintiff a notice advising him of his right to
file objections to the Report. (Dkt. # 10 at 7). Plaintiff filed objections to the Magistrate
Judge's Report on November 13, 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 as frivolous because (1) the Plaintiff’s claim for damages for the loss of his
personal property does not present a federal cause of action against the Defendants
under § 1983; and (2) the case is a frivolous duplicate filing.1 The Magistrate Judge
also recommended that the dismissal be designated a strike pursuant to 28 U.S.C. §
1915(g).
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.

1

This is the third such action filed by Plaintiff in this court in which he has attempted to bring the same claim
against the same Defendants. See Steve Lester v. Perry Correctional Institution, et al., Civil Action No. 4:11-1388TMC-TER (D.S.C.) (summarily dismissed on October 27, 2011), and Steve Lester v. Perry Correctional Institution,
et al., Civil Action No. 4:12-971-TMC-TER (D.S.C.) (summarily dismissed on May 31, 2012).

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 Plaintiff’s federal claims are DISMISSED with prejudice for
frivolousness and this dismissal is deemed a strike under 28 U.S.C. § 1915(g)
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
November 28, 2012
Anderson, 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.