Herzog v. Horry County Council et al
ORDER RULING ON REPORT AND RECOMMENDATION: The Court adopts and incorporates by reference the R & R [ECF No. 49 ] of the Magistrate Judge. Accordingly, the Court GRANTS IN PART AND DENIES IN PART Plaintiff's Motion to D ismiss Defendant South Carolina [ECF No. 27 ]. The Court DISMISSES Defendant State of South Carolina from this action without prejudice. The Court DENIES Plaintiff's Motion to the extent Plaintiff asserts termination of said Defendant renders the entire case in proper form for authorization of service. Signed by the Honorable R. Bryan Harwell on 5/23/2017. (hcic, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Horry County Council, et al.,
Civil Action No.: 4:17-cv-00398-RBH-TER
This matter is before the Court on Plaintiff’s untimely objections to the Report and
Recommendation (R & R) of United States Magistrate Judge Thomas E. Rogers, III.1 See ECF Nos.
49 & 61. The Magistrate Judge recommends that the Court grant in part and deny in part Plaintiff’s
Motion to Dismiss Defendant South Carolina. See ECF No. 27.
Standard of Review
The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge’s
recommendation has no presumptive weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a
de novo review of those portions of the R & R to which specific objections are made, and it 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 must engage in 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 [C]ourt to a specific error
The M agistrate Judge submitted the R & R to this Court in accordance with 28 U.S.C. § 636(b)(1)(B) and
Local Rule 73.02 for the District of South Carolina.
in the [M]agistrate [Judge]’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of timely filed specific objections to the R & R, the Court reviews
only for clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and
the Court need not give any explanation for adopting the Magistrate Judge’s recommendation. Camby
v. Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).
Objections to an R & R must be filed within fourteen days of the date of service. See 28 U.S.C.
§ 636(b); Fed. R. Civ. P. 72(b)(2). When service of the R & R is made by mail (as in this case), the
objecting party has three additional days to file objections. See Fed. R. Civ. P. 6(d). A paper is filed
when it is delivered to the Clerk (or a judge), not when it is mailed. See Fed. R. Civ. P. 5(d)(2).
The Magistrate Judge entered the R & R on April 26, 2017, and the Clerk mailed Plaintiff a copy
of the R & R that same day. See ECF Nos. 49 & 50. Plaintiff’s objections were therefore due by May
15, 2017.2 Id. However, the Court did not receive Plaintiff’s objections until May 17, 2017. See ECF
No. 61 (timestamp by the Clerk). Thus, Plaintiff’s objections are untimely.
“[I]n the absence of a timely filed objection, a district court need not conduct a de novo review,
but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept
the recommendation.’” Diamond, 416 F.3d at 315 (quoting Fed. R. Civ. P. 72 advisory committee’s
note). The Court has reviewed the record in this case, including the R & R and Plaintiff’s Motion to
Dismiss Defendant South Carolina. Having done so, the Court discerns no clear error and therefore will
adopt and incorporate the R & R by reference.
The R & R notified Plaintiff that “written objections must be filed within fourteen (14) days of the date of
service of this Report and Recommendation.” R & R at 3. Because Plaintiff was served by mail, he had three
additional days to file objections. See Fed. R. Civ. P. 6(d).
After a thorough review of the record in this case, the Court finds no clear error and therefore
adopts and incorporates by reference the R & R [ECF No. 49] of the Magistrate Judge. Accordingly,
the Court GRANTS IN PART AND DENIES IN PART Plaintiff’s Motion to Dismiss Defendant
South Carolina [ECF No. 27]. The Court DISMISSES Defendant State of South Carolina from this
action without prejudice. The Court DENIES Plaintiff’s Motion to the extent Plaintiff asserts
termination of said Defendant renders the entire case in proper form for authorization of service.
IT IS SO ORDERED.
Florence, South Carolina
May 23, 2017
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
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