Sullivan v. Ozmint et al

Filing 49

ORDER granting 43 Motion to Dismiss; affirming 46 Report and Recommendations. Signed by Chief Judge David C Norton on 11/17/2009.(eric, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

GERALD SULLIVAN, #317707, Plaintiff, vs. JON OZMINT, ANTHONY PADULA, RONNIE CRIBB, ANTHONY DAVIS, ERNEST MIMS, SHAUN PARKER, RYAN SAURS, NURSE BROWN, Defendants. ______________________________________

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C/A No. 6:09-1173 DCN

ORDER

The above referenced case is before this court upon the magistrate judge's recommendation that the plaintiff's Motion to Dismiss be granted and this action be dismissed with prejudice. This court is charged with conducting a de novo review of any portion of the magistrate judge's report to which a specific objection is registered, and may accept, reject, or modify, in whole or in part, the recommendations contained in that report. 28 U.S.C. § 636(b)(1). However, absent prompt objection by a dissatisfied party, it appears that Congress did not intend for the district court to review the factual and legal conclusions of the magistrate judge. Thomas v Arn, 474 U.S. 140 (1985). Additionally, any party who fails to file timely, written objections to the magistrate judge's report pursuant to 28 U.S.C. § 636(b)(1) waives the right to raise those objections at the appellate court level. United States v.

Schronce, 727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S. 1208 (1984 ).1 No objections have been filed to the magistrate judge's report and recommendation. A de novo review of the record indicates that the magistrate judge's report accurately summarizes this case and the applicable law. Accordingly, the magistrate judge's report and recommendation is AFFIRMED, plaintiff's Motion to Dismiss is GRANTED, and this action is DISMISSED WITH PREJUDICE. AND IT IS SO ORDERED.

David C. Norton Chief United States District Judge Charleston, South Carolina November 17, 2009

NOTICE OF RIGHT TO APPEAL The parties are hereby notified that any right to appeal this Order is governed by Rules 3 and 4 of the Federal Rules of Appellate Procedure.

In Wright v. Collins, 766 F.2d 841 (4th Cir. 1985), the court held "that a pro se litigant m u st receive fair notification of the consequences of failure to object to a magistrate judge's rep o rt before such a procedural default will result in waiver of the right to appeal. The notice m u st be 'sufficiently understandable to one in appellant's circumstances fairly to appraise him o f what is required.'" Id. at 846. Plaintiff was advised in a clear manner that his objections had to be filed within ten (10) days, and he received notice of the consequences at the appellate lev el of his failure to object to the magistrate judge's report.

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