Wise v. McCall et al

Filing 46

ORDER RULING ON REPORT AND RECOMMENDATION. The Report and Recommendation is incorporated herein by reference and this action is DISMISSED without prejudice. The legal standard for the issuance of a certificate of appealability has not been met. Signed by Honorable Mary G Lewis on 8/6/2012. (kric, )

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

) Civil Action No.: 6:12-730-MGL
)
Plaintiff, )
)
vs.
)
ORDER AND OPINION
)
Michael McCall, et al.,
)
)
Defendants. )
_________________________________)
Plaintiff Cedric Wise is an inmate in custody at Perry Correctional Institution in
Pelzer, South Carolina. (ECF No. 1.) On March 15, 2012, Plaintiff proceeding pro se, filed
this civil rights action pursuant to 42 U.S.C. § 1983. Id. In accordance with 28 U.S.C.
§ 636(b)(1) and Local Civil Rule 73.02 D.S.C., this matter was referred to United States
Magistrate Judge Kevin F. McDonald for pretrial handling.
Plaintiff filed a motion to dismiss complaint without prejudice on July 2, 2012. ECF
No. 33.) The Defendants, in their response, stated that they have no objection to the
plaintiff’s motion. (ECF No. 34.) Thus, Magistrate Judge McDonald recommended that
the plaintiff’s motion be granted and this action be dismissed without prejudice pursuant to
Federal Rule of Civil Procedure 41(a)(2). (ECF No. 42.)
The Magistrate Judge makes only a recommendation to this court.
recommendation has no presumptive weight.

The

The responsibility to make a final

determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1). The court may
also receive further evidence or recommit the matter to the Magistrate Judge with

instructions. Id. The court is charged with making a de novo determination of those
portions of the Report and Recommendation to which specific objections are made.
After a careful review of the record, the applicable law, and the Report and
Recommendation, the court finds the Magistrate Judge’s recommendation to be proper.
Accordingly, the Report and Recommendation is incorporated herein by reference and this
action is DISMISSED without prejudice.
CERTIFICATE OF APPEALABILITY
The law governing certificates of appealability provides that:
(c) (2) A certificate of appealability may issue ... only if the applicant has made a substantial
showing of the denial of a constitutional right.
(c) (3) The certificate of appealability ... shall indicate which specific issue or issues satisfy
the showing required by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable
jurists would find this court's assessment of his constitutional claims is debatable or wrong
and that any dispositive procedural ruling by the district court is likewise debatable. See
Miller–El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v.
McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252
F.3d 676, 683 (4th Cir.2001). In this case, the legal standard for the issuance of a
certificate of appealability has not been met.
IT IS SO ORDERED.
s/Mary G. Lewis
United States District Judge

Spartanburg, South Carolina
August 2, 2012.

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