Cutner v. Wilson et al

Filing 73

ORDER RULING ON REPORT AND RECOMMENDATION 56 . Plaintiffs Motion for Default Judgment is DENIED. Signed by Honorable G Ross Anderson, Jr on 3/13/2013. (kric, ) Modified on 3/13/2013 to correct linkage (kric, ).

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Lamont Cutner,

)
)
Plaintiff,
)
)
v.
)
)
Ofc. Michael Marshal, Ofc. K. Harrington, )
and Wilson Simmons,
)
)
Defendants.
)
_______________________________________ )

C/A No.: 6:12-cv-02544-GRA-KFM

ORDER
(Written Opinion)

This matter is before the Court for review of United States Magistrate Judge Kevin
F. McDonald’s Report and Recommendation made in accordance with 28 U.S.C. §
636(b)(1) and Local Civil Rule 73.02(B)(2)(d) of the District of South Carolina, and filed on
February 20, 2013. ECF No. 56. On September 6, 2012, Plaintiff Lamont Cutner
(“Plaintiff”) brought this claim pursuant to 42 U.S.C. § 1983. ECF No. 1. Plaintiff has
filed two motions for default judgment. ECF Nos. 39 & 50. The Court denied Plaintiff’s
first motion for default judgment on March 8, 2013. ECF No. 61. Plaintiff filed a second
motion for default judgment on February 14, 2013. ECF No. 50. In the motion, Plaintiff
argues that the Court should grant default judgment against Defendants Ofc. Michael
Marshal, Ofc. K. Harrington, and Wilson Simmons (“Defendants”), because Defendants
have failed to timely respond to Plaintiff’s discovery requests. The Magistrate Judge
recommends that Plaintiff’s motion for default judgment be denied. Report and
Recommendation, ECF No. 56.
The Magistrate Judge makes only a recommendation to this Court. The
recommendation has no presumptive weight, and the responsibility to make a final
determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270–71
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(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. “The failure to file objections
to the report and recommendation waives any further right to appeal.” Smith v. Detroit
Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987); see Carter v.
Pritchard, 34 F. App’x 108, 108 (4th Cir. 2002) (per curiam). 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, 199
(4th Cir. 1983). In this case, objections to the Report and Recommendation were due on
March 11, 2013. Neither Plaintiff nor Defendant has filed objections to the Report, and
the time to object has passed.
After a review of the record, this Court finds that the Magistrate Judge’s Report
and

Recommendation

accurately

summarizes

the

case

and

the

applicable

law.

Accordingly, for the reasons articulated by the Magistrate Judge, the Report and
Recommendation is accepted and adopted in its entirety.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Default Judgment is DENIED.
IT IS SO ORDERED.

March 13 , 2013
Anderson, South Carolina
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