Irizarry v. Greenville, County of et al

Filing 28

ORDER RULING ON REPORT AND RECOMMENDATIONS for 11 Motion to Dismiss, filed by J F Hamlett, Greenville, County of, 26 Report and Recommendations. The court adopts the Magistrate Judge's Report. The Defendants Motion to Dismiss (Dkt. # 11) is GRANTED. Signed by Honorable Timothy M Cain on 3/26/2012. (kric, ) Modified on 3/26/2012 to correct docket text (kric, ).

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

Luis Armondo Irizarry,
Plaintiff,
v.
County of Greenville1, State of South
Carolina, and J.F. Hamlett,
Defendants.
_______________________________

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C/A No. 6:11-2403-TMC

OPINION & ORDER

Plaintiff, proceeding pro se, filed this action on July 14, 2011, in the Court of
Common Pleas, Richland County, South Carolina. (Dkt. # 1-1). Defendants removed
the action to this Court on September 8, 2011 (Dkt. # 1) and filed their Motion to
Dismiss on September 15, 2011. (Dkt. # 11). Plaintiff filed a response on October 20,
2011 (Dkt. # 19), and Defendants filed a reply on October 31, 2011. (Dkt. # 23).
In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(d),
D.S.C., all pre-trial proceedings were referred to a Magistrate Judge. On March 2,
2012, Magistrate Judge Jacquelyn D. Austin issued a Report and Recommendation
(“Report”) recommending that the Defendants’ Motion to Dismiss be granted. (Dkt. #
26).

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The Report sets forth in detail the relevant facts and legal standards on this

As noted by the Magistrate Judge in the Report, although the County of Greenville is named in the caption of the
Complaint, the allegations in the Complaint concern the City of Greenville’s municipal court, and Plaintiff does not
appear to make any allegations against the County of Greenville. Accordingly, it appears Plaintiff intended to bring
this action against the City of Greenville.

matter, and the court incorporates the Report without a recitation.
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 this court. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The court is charged with making a de novo determination 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 magistrate judge's recommendation or recommit the
matter with instructions. See 28 U.S.C. § 636(b)(1).
The Plaintiff was advised of his right to file objections to the Report (Dkt. # 26-1).
However, Plaintiff filed no objections to the Report and Recommendation.
In the absence of objections to the Magistrate Judge’s Report, this court is not
required to provide an explanation for adopting the recommendation. See Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, "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.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th
Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note). Furthermore, failure
to file specific written objections to the Report results in a party's waiver of the right to
appeal from the judgment of the district court based upon such recommendation. 28
U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d
841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
After a thorough review of the Report and the record in this case, the court
adopts the Magistrate Judge's Report (Dkt. # 26) and incorporates it herein. It is

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therefore ORDERED that the Defendants’ Motion to Dismiss (Dkt. # 11) is GRANTED.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
March 26, 2012
Greenville, South Carolina

NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules
3 and 4 of the Federal Rules of Appellate Procedure.

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