Cabbagestalk v. Smith et al

Filing 23

ORDER adopting 17 REPORT AND RECOMMENDATION, denying 2 Motion for Leave to Proceed in forma pauperis filed by Shaheen Cabbagestalk. Plaintiff shall have fifteen days from the date of the entry of this order to pay the C ourt's filing fee. If Plaintiff fails to pay the fee within this fifteen-day period, the Clerk shall dismiss this action without prejudice and without issuance and service of process. Signed by The Honorable Richard M Gergel on 5/2/2014. (hcic, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

Shaheen Cabbagestalk,

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No.5: 14-cv-268-RMG

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Plaintiff,

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v.
Willie F. Smith, Head Administrator over
Food Services; Mr. Marlon Fedd, Lee CI
Food Services Head Food Supervisor; All
Kitchen Supervisors, and Warden Dennis
Bush,

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ORDER

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Defendants.

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This matter is before the Court on the Report and Recommendation ("R&R") of the
Magistrate Judge. (Dkt. No. 17). As set forth below, the Court adopts the R&R as the order of
the Court.
Background

Plaintiff, a state prisoner, filed this action pro se and has moved the Court to proceed in

forma pauperis.

(Dkt. Nos. 1, 2).

Pursuant to 28 U.S.C. § 636(b) and Local Civil Rule

73.02(B)(2)(e) DSC, this case was assigned to a Magistrate Judge for all pretrial proceedings.
Under established local procedure in this judicial district, the Magistrate Judge conducted a
careful review of the Complaint pursuant to the provisions of 28 U.S.C. § 1915 and in light of
the following precedents: Neitzke v. Williams, 490 U.S. 319 (1980); Estelle v. Gamble, 429 U.S.
97 (1976); Haines v. Kerner, 404 U.S. 519 (1972); and Gordon v. Leeke, 574 F.2d 1147 (4th Cir.
1978). The Magistrate Judge then issued the present R&R. (Dkt. No. 17). Plaintiff failed to file
timely objections to the R&R.

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Legal Standard

The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 V.S. 261, 270-71 (1976). This Court is charged with making
a de novo determination of those portions of the R&R to which specific objection is made.
Additionally, the Court may "accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." 28 V.S.c. § 636(b)(1). This Court may also
"receive further evidence or recommit the matter to the magistrate judge with instructions." Id.
Discussion

After review of the record and the R&R, the Court agrees with and adopts the R&R as the
order of the Court. Plaintiff has received three strikes under 28 V.S.C. § 1915(g) and therefore
must pay the Court's filing fee or show that he is under imminent danger of serious physical
injury. The Court agrees with the Magistrate Judge that Plaintiffs complaint fails to satisfy the
"imminent danger" requirement and that he must pay the Court's filing fee in order to proceed
with this action.
Conclusion

For the reasons set forth above, the Court agrees with and adopts the R&R as the order of
the Court. (Dkt. No. 17). Accordingly, Plaintiff's motion for leave to proceed in forma pauperis
is denied. (Dkt. No.2). Further, Plaintiff shall have fifteen days from the date of the entry of
this order to pay the Court's filing fee. If Plaintiff fails to pay the fee within this fifteen-day
period, the Clerk shall dismiss this action without prejudice and without issuance and service of
process.

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AND IT IS SO ORDERED.

United States District Court Judge
May 2..-, 2014
Charleston, South Carolina

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