Rivera v. Lewis

Filing 41

ORDER RULING ON REPORT AND RECOMMENDATION: The Court adopts the Report and Recommendation [ECF No. 33 ], and incorporates it herein. Therefore, it is the judgment of the Court Respondent's motion for summary judgment is GRANTED, and the Petition is DENIED. To the extent Petitioner asks for a certificate of Appealability, that request is DENIED. IT IS SO ORDERED. Signed by Honorable Mary Geiger Lewis on 12/19/2016. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
MARLON RIVERA
Petitioner,
vs.
SCOTT LEWIS,
Respondent.

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Civil Action No. 5:16-00837-MGL-KDW

ORDER ADOPTING THE REPORT AND RECOMMENDATION,
GRANTING RESPONDENT’S MOTION FOR SUMMARY JUDGMENT, AND
DENYING THE PETITION
This is a 28 U.S.C. § 2254. Petitioner is proceeding pro se. This matter is before the
Court for review of the Report and Recommendation (Report) of the United States Magistrate
Judge suggesting Respondent’s Motion for Summary Judgment be granted and the Petition be
denied. The Report was made in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02
for the District of South Carolina.
The Magistrate Judge makes only a recommendation to this 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 (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 need not
conduct a de novo review, however, “when a party makes general and conclusory objections that
do not direct the court to a specific error in the [Magistrate Judge’s] proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982); see Fed. R. Civ. P.
72(b).
The Magistrate Judge filed the Report on November 9, 2016.

ECF No. 33.

On

December 9, 2016, the Clerk of Court filed Petitioner’s document entitled “Respond with
Written Objection to Court Report and Recommendation” (Petitioner’s memorandum). ECF No.
39.
“A document filed pro se is ‘to be liberally construed.’” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Courts are not, however,
required to “conjure up questions never squarely presented to them” or seek out arguments for a
party. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Even when construed liberally and in the light most favorable to Petitioner, Petitioner’s
memorandum fails to set forth any specific objection to the Report. The only portions of
Petitioner’s memorandum that reference the Report are entirely conclusory and general.
Petitioner’s lengthy memorandum consists primarily of a recitation of background and
procedural facts, various standards and statements of law, portions of the Report copied
verbatim, and a rehashing of Petitioner’s previous arguments in support of the Petition. Any
meaningful counter to the well-reasoned conclusions in the Report is absent.

Because

Petitioner’s memorandum fails to allege any specific objection to the Report, the Court need
not—and will not—address the arguments raised in Petitioner’s memorandum.

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After a thorough review of the Report, Petitioner’s memorandum, and the record in this
case pursuant to the standard set forth above, the Court overrules Petitioner’s objections, adopts
the Report, and incorporates it herein. Therefore, it is the judgment of the Court Respondent’s
motion for summary judgment is GRANTED, and the Petition is DENIED.
To the extent Petitioner asks for a Certificate of Appealability, that request is DENIED.
IT IS SO ORDERED.
Signed this 19th day of December 2016 in Columbia, South Carolina.
s/ Mary Geiger Lewis
MARY GEIGER LEWIS
UNITED STATES DISTRICT JUDGE

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NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this Order within thirty days from
the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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