Wise v. McCabe et al

Filing 50

ORDER RULING ON REPORT AND RECOMMENDATION 47 . The Court adopts the R&R as the order of the Court. (Dkt. No. 47). Accordingly, the Court GRANTS Plaintiff's motion to dismiss this action (Dkt. No. 44) with prejudice. Defendants' motion for summary judgment (Dkt. No. 41) is therefore DENIED as moot. Signed by Honorable Richard M Gergel on 7/15/2013. (kric, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

Cedric Wise,
Plaintiff,

v.

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CIA No. 6: 12-3192-RMG

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Wayne McCabe, John H. Carmichael, Jr.,
Defendants.

ORDER

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This matter is before the Court on the Report and Recommendation ("R&R") of the
Magistrate Judge recommending that this Court grant Plaintiffs motion to dismiss with
prejudice. (Dkt. No. 47). For the reasons stated below, the Court agrees with and adopts the
R&R as the order of the Court.

Background
Plaintiff filed this action alleging the defendants violated his First Amendment Rights and
the Religious Land Use and Institutionalized Persons Act ("RLUIPA") because they have
refused to list Plaintiff as a member of the "Nations of Gods and Earths" religion, commonly
known as the "Five Percenters." (Dkt. No.1). This matter was referred to a Magistrate Judge in
accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) DSC for all pretrial
proceedings. After Defendants filed a motion for summary judgment (Dkt. No. 41), Plaintiff
then filed a motion to voluntarily dismiss his lawsuit (Dkt. No. 44). Defendants do not oppose
the dismissal, but request that the case be dismissed with prejudice.

(Dkt. No. 45).

The

Magistrate Judge then issued the present R&R recommending that the Court dismiss this action
with prejudice. (Okt. No.47). Neither party filed timely objections to the R&R.

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Legal Standard
The Magistrate Judge 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 R&R 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 reviewing these pleadings, the Court is mindful of Plaintiffs pro se status. This Court
is charged with liberally construing the pleadings of a pro se litigant. See, e.g., De'Lonta v.
Angelone, 330 F.3d 630, 633 (4th Cir. 2003). The requirement of a liberal construction does not

mean, however, that the Court can ignore a plaintiffs clear failure to allege facts that set forth a
cognizable claim or that a court must assume the existence of a genuine issue of material fact
where none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012).
LawlAnalysis

The Magistrate Judge liberally construed the pleadings, accurately summarized the law,
and correctly concluded that the Court should dismiss Plaintiffs action with prejudice. Except
under certain circumstances not applicable here, see Fed. R. Civ. P. 41(a)(I), an action may be
dismissed at the plaintiffs request only by court order on terms that the court considers proper,
Fed. R. Civ. P. 41(a)(2). Since this is the second lawsuit voluntarily dismissed by Plaintiff in
which the same issues were litigated, and for the reasons stated in the R&R, the Court dismisses
this case with prejudice.

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Conclusion

After reviewing the record and the Magistrate Judge's R&R, this Court adopts the R&R
as the order of the Court. (Dkt. No. 47). Accordingly, the Court GRANTS Plaintiff's motion to
dismiss this action (Dkt. No. 44) with prejudice. Defendants' motion for summary judgment
(Dkt. No. 41) is therefore DENIED as moot.
AND IT IS SO ORDERED.

The Honorable Ric d ark Gergel
United States District ourt Judge
July IS" 2013
Charleston, South Carolina

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