Simmons v. SCDC

Filing 113

ORDER ADOPTING 40 REPORT AND RECOMMENDATIONS Report and Recommendations, granting 62 Motion to Dismiss filed by SCDC, 23 Motion to Dismiss filed by SCDC. Signed by Honorable G Ross Anderson, Jr on 7/28/09. (ncha, ) Modified on 7/29/2009 (ncha, )to correct filing date.

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA GREENVILLE DIVISION Carlos Simmons, #211859, ) ) Civil Action No. 6:08-400-GRA-WMC Plaintiff, ) ) ORDER vs. ) ) SCDC Lieber CI, et al., ) ) Defendants. ) ) This matter comes before the Court for review of the magistrate's Report and Recommendation filed on April 9, 2009 made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(d) (D.S.C.). The plaintiff brings this action under 42 § U.S.C. 1983. On December 3, 2008, the defendant filed a motion to dismiss, arguing that it is entitled to Eleventh Amendment immunity. By order filed on December 4, 2008, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the summary judgment dismissal procedure and the possible consequences if he failed to adequately respond to the motion. The plaintiff responded on December 31, 2008. plaintiffs motion to dismiss. Before this Court could issue a final order on the matter, the plaintiff moved and was granted leave to amend the complaint. The amended complaint, filed on March 24, 2009 does not name SCDC Lieber CI as a defendant in this matter. Thus, SCDC Lieber CI now moves the Court to be dismissed from this case. Plaintiff brings this claim pro se. This Court is required to construe pro se The magistrate recommended granting the

pleadings liberally. Such pleadings are held to a less stringent standard than those drafted by attorneys. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). This Court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See Boag v. MacDougall, 454 U.S. 364, 365 (1982). The magistrate makes only a recommendation to this Court. The

recommendation has no presumptive weight, and responsibility for making a final determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made, and this Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). This Court may also "receive further evidence or recommit the matter to the magistrate with instructions." Id. In order for objections to be considered by a United States District Judge, the objections must specifically identify the portions of the Report and Recommendation to which the party objects and the basis for the objections. FED. R. CIV. P. 72(b); see United States v. Schronce, 727 F.2d 91,94 n.4 (4th Cir. 1984); Wright v. Collins, 766 F.2d 841, 845-47 nn.1-3 (4th Cir. 1985). "Courts have . . . held de novo review to be unnecessary in . . . situations when a party makes general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendation." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).

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Furthermore, in the absence of specific objections to the Report and Recommendation, this Court is not required to give any explanation for adopting the recommendation. Camby v. Davis, 718 F.2d 198 (4th Cir. 1983). April 7, 2009 fail to meet this standard. After reviewing the record, and the Report and Recommendation this Court finds that the magistrate applied sound legal principles to the facts of this case. Therefore, this Court adopts the magistrate's Report and Recommendation in its entirety. Wherefore, the defendant's motions to dismiss (Doc. 23, 62 ) are hereby GRANTED. IT IS SO ORDERED. The objections by the plaintiff on

Anderson, South Carolina July 28, 2009 NOTICE OF RIGHT TO APPEAL Petitioner is hereby notified that he has the right to appeal this Order within thirty (30) days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure. Failure to meet this deadline, as modified within Rule 4, will waive the right to appeal.

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