Salyers v. Morgan

Filing 12

ORDER RULING ON REPORT AND RECOMMENDATION: The Court adopts and incorporates the Report and Recommendation (ECF No. 10 ) and dismisses this action without prejudice and without issuance and service of process. AND IT IS SO ORDERED. Signed by Honorable Bruce Howe Hendricks on 10/10/2017. (prou, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA Kathy JoAnn Salyers, ) ) Plaintiff, ) ) v. ) ) Kelly M. Morgan, ) ) Defendant. ) ________________________________) Civil Action No. 4:17-cv-2245-BHH This matter is before the Court upon Plaintiff Kathy JoAnn Salyers’ pro se complaint. In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(a), D.S.C., the matter was referred to a United States Magistrate Judge for preliminary review. On September 19, 2017, the Magistrate Judge issued a report and recommendation (“Report”) outlining the issues and recommending that the Court dismiss this complaint without prejudice and without issuance and service of process. As the Magistrate Judge noted, Plaintiff cannot pursue an action pursuant to 42 U.S.C. § 1983 against a non-state actor, and the only Defendant in this action is Plaintiff’s former attorney and bankruptcy creditor. In addition, the bankruptcy court has determined the propriety of Plaintiff’s claims, and Plaintiff is barred from raising those issues in a collateral proceeding. Attached to the Magistrate Judge’s Report was a notice advising Plaintiff of her right to file written objections to the Report within fourteen days of receiving a copy. To date, no objections have been filed. The Magistrate Judge makes only a recommendation to the Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo determination only of those portions of the Report to which specific objections are made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). In the absence of specific objections, the Court reviews the matter only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in 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.’ “) (quoting Fed. R. Civ. P. 72 advisory committee’s note). Here, because no objections were filed, the Court has reviewed the record, the applicable law, and the findings and recommendations of the Magistrate Judge for clear error. Finding none, the Court adopts and incorporates the Report (ECF No. 10) and dismisses this action without prejudice and without issuance and service of process. AND IT IS SO ORDERED. /s/Bruce H. Hendricks The Honorable Bruce Howe Hendricks United States District Judge October 10, 2017 Charleston, South Carolina 2

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