Bracken v. Finkel Law Firm LLC et al

Filing 17

ORDER adopting 11 Report and Recommendation. It is ORDERED that this action is DISMISSED without prejudice and without service of process. It is further ORDERED that Bracken's 4 Motion to proceed in forma pauperis and 15 Motion to vacate the Report are DENIED. Signed by Honorable Timothy M Cain on 5/1/15. (kmca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Joel Clay Bracken,
Plaintiff,
vs.
Finkel Law Firm, LLC;
Susan S. White;
Elizabeth S. Moore;
Thomas A. Shook;
Teresa D. Van Vlake;
Andrew W. Wilson;
Joanne A. Tomasini-Muniz; and
Tracy Harris,
Defendants.

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Civil Action No. 6:15-1513-TMC

ORDER

Joel Clay Bracken (“Bracken”), proceeding pro se, filed this action alleging violations of
the Fair Debt Collection Act pursuant to 15 U.S.C. § 1692. In accordance with 28 U.S.C. §
636(b)(1) and Local Civil Rule 73.02, D.S.C., this matter was referred to a magistrate judge for
pretrial handling. Before the court is the magistrate judge’s Report and Recommendation
(“Report”), recommending that the action be dismissed without prejudice and without service of
process and that Plaintiff’s motion to proceed in forma pauperis (ECF No. 4) be denied. (ECF
No. 11). Bracken was advised of his right to file objections to the Report, (ECF No. 11 at 9), and
he filed timely objections. (ECF No. 15).
The Report has no presumptive weight and the responsibility to make a final
determination in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 27071 (1976). The court need not conduct a de novo review when a party makes only “general and
conclusory objections that do not direct the court to a specific error in the magistrate’s proposed

findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In that
case, the court reviews the Report only for clear error. See Diamond v. Colonial Life & Accident
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
Bracken’s objections fail to address any specific, dispositive portion of the Report. The
objections are non-specific and unrelated to the dispositive portions of the Report.

The

“objections” are titled “Plaintiff’s objection to an (sic) magistrate’s authority, referral, order and
Report: motion to vacate.” (ECF No. 15). Bracken claims that the Report should be vacated
because he did not consent to having a magistrate judge review his case.

Local Rule

73.02(B)(2), D.S.C., provides:
Automatic References. The clerk of court shall assign the following matters to a
full-time magistrate judge upon filing:
...
(b) All motions for leave to proceed in forma pauperis.
...
(e) All pretrial proceedings involving litigation by individuals proceeding pro se.
Therefore, the consent of the parties is not required. Instead, the consent of the parties is only
required when the magistrate judge is making a final judgment in a case or handling a matter
dispositively. See Local Rule 73.03, D.S.C.; see also 28 U.S.C. § 636. Because the magistrate
judge in this case is only offering his recommendation to this court, Bracken’s consent was
unnecessary. After a thorough review of the Report and Bracken’s objections, the court finds no
reason to deviate from the Report’s recommended disposition.
Accordingly, the court adopts the Magistrate Judge's Report (ECF No. 11) and
incorporates it herein. It is therefore ORDERED that the action is DISMISSED without
prejudice and without service of process. It is further ORDERED that Bracken’s motions to
proceed in forma pauperis (ECF No. 4) and to vacate the Report (ECF No. 15) are DENIED.

IT IS SO ORDERED.

s/Timothy M. Cain
United States District Judge
May 1, 2015
Anderson, 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.