Charley v. State of South Carolina
Filing
15
ORDER adopting 9 Report and Recommendation that this action is DISMISSED without prejudice and without service of process for lack of subject matter jurisdiction. Signed by Honorable Bruce Howe Hendricks on 7/10/14. (kmca)
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Timothy Charley, #265146,
) Civil Action No.: 6:14-2151-BHH
)
Petitioner, )
) ORDER AND OPINION
)
vs.
)
)
State of South Carolina,
)
Respondent. )
______________________________ )
Petitioner Timothy Charley (“Petitioner”) is an inmate at the Allendale Correctional
Institution in Fairfax, South Carolina. On May 30, 2014,1 Petitioner filed a Petition for Writ
of Mandamus in this Court to compel the Circuit Court for Orangeburg County to seize the
property of the respondent in the state court case. (ECF No. 1 at 2). In accordance with
28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) D.S.C., this matter was referred to
United States Magistrate Judge Kevin F. McDonald for pretrial handling. On June 5, 2014,
Magistrate Judge McDonald issued a Report and Recommendation (ECF No. 9)
recommending that the Court dismiss the Petition without prejudice and without issuance
and service of process because this Court lacks subject matter jurisdiction over a request
for a Writ of Mandamus directed at the State of South Carolina or the Circuit Court of
Orangeburg County.
The Magistrate Judge makes only a recommendation to this Court.
recommendation has no presumptive weight.
1
The
The responsibility to make a final
This filing date reflects that the envelope containing the petition was stamped as having
been received on May 30, 2014, by the South Carolina Department of Corrections. (ECF No.19.) Houston v. Lack, 487 U.S. 266 (1988) (holding prisoner's pleading is considered filed when
given to prison authorities for forwarding to the district court).
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.
Plaintiff was advised of his right to file objections to the Report and
Recommendation. (ECF No. 9 at 4.) Plaintiff filed no objections to the Report and
Recommendation and the time for doing expired on June 23, 2014. 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).
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 (ECF No. 9) is incorporated herein by
reference and this action is DISMISSED without prejudice and without service of process
for lack of subject matter jurisdiction.
IT IS SO ORDERED.
s/ Bruce Howe Hendricks
United States District Judge
Greenville South Carolina
July 10, 2014
-2-
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