Flores v. United States Attorney General et al

Filing 16

ORDER RULING ON REPORT AND RECOMMENDATION adopting 10 Report and Recommendation. Plaintiff's action is DISMISSED as frivolous and without issuance and service of process. Signed by Honorable G Ross Anderson, Jr on 7/7/2015. (gpre, ) Modified on 7/7/2015 to correct date signed (gpre, ).

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
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Plaintiff,
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v.
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United States Attorney General; Federal )
Bureau of Investigation,
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Defendants. )
________________________________ )
Eric Flores,

C/A No. 6:15-cv-01547-GRA

ORDER
(Written Opinion)

This matter comes before this Court for review of United States Magistrate
Judge Jacquelyn D. Austin’s Report and Recommendation made in accordance with
28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(e) DSC, and filed on April
16, 2015. ECF No. 10. For the reasons discussed herein, this Court adopts the
magistrate judge’s recommendation in its entirety.
Background
Defendant Eric Flores (“Defendant”), proceeding pro se and in forma pauperis,
filed this civil action on April 8, 2014, seeking, among other things, a finding that his
constitutional rights have been violated. ECF Nos. 1, 3 & 9. Under established
procedure in this judicial district, Magistrate Judge Austin made a careful review of
the pro se complaint and now recommends that this Court dismiss Plaintiff’s case
against Defendants as frivolous and without issuance and service of process. ECF
No. 10. The Report and Recommendation was mailed to Defendant on April 16,
2014, and was returned to this Court as undeliverable on May 26, 2015. ECF Nos.
11 & 13. The Report and Recommendation was re-mailed to Defendant at a different

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address on May 27, 2015. ECF No. 14. No objections to the magistrate’s Report and
Recommendation were filed.
Standard of Review
Plaintiff brings this claim pro se. This Court is required to construe pro se
pleadings liberally. Such pleadings are held to a less stringent standard than those
drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). This
Court is charged with liberally construing a pleading filed by a pro se litigant to allow
for the development of a potentially meritorious claim. Boag v. MacDougall, 454 U.S.
364, 365 (1982).

However, a district court may not construct the plaintiff's legal

arguments for him, Small v. Endicott, 998 F.2d 411 (7th Cir.1993), nor is a district
court required to recognize “obscure or extravagant claims defying the most
concerted efforts to unravel them.” Beaudett v. City of Hampton, 775 F.2d 1274,
1277 (4th Cir.1985), cert. denied, 475 U.S. 1088 (1986).
Plaintiff brings this claim in forma pauperis under 28 U.S.C. § 1915, which
permits an indigent litigant to commence an action in federal court without prepaying
the administrative costs of proceeding with the lawsuit. To protect against possible
abuses of this privilege, the statute requires a district court to dismiss the case upon a
finding that the action “is frivolous or malicious,” “fails to state a claim on which relief
may be granted,” or “seeks monetary relief against a defendant who is immune from
such relief.” 28 U.S.C. § 1915(e)(2)(B).
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 judge." 28 U.S.C. § 636(b)(1). This Court
may also "receive further evidence or recommit the matter to the magistrate judge
with instructions." Id.
In order for objections to be considered by a United States District Judge, the
objections must be timely filed and must specifically identify the portions of the Report
and Recommendation to which the party objects and the basis for the objections.
Fed. R. Civ. P. 72(b); see Wright v. Collins, 766 F.2d 841, 845–47 nn.1–3 (4th Cir.
1985); United States v. Schronce, 727 F.2d 91, 94 n.4 (4th Cir. 1984). “Courts have .
. . held de novo review to be unnecessary in . . . situations when a party makes
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 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). Rather, “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) (quoting Fed. R. Civ. P. 72 advisory committee’s
note).

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Discussion
The deadline for filing objections in this case was June 15, 2015. ECF No. 15.
The Defendant did not file any objections to Magistrate Judge Austin’s Report and
Recommendation. Accordingly, no objections need to be addressed.
Conclusion
After a thorough review of the record, this Court finds no clear error and that
the magistrate judge’s Report and Recommendation accurately summarizes the case
and the applicable law. Accordingly, the Report and Recommendation is accepted
and adopted in its entirety.
IT IS THEREFORE ORDERED that Defendant’s action is DISMISSED as
frivolous and without issuance and service of process.

Additionally, Plaintiff’s

attention is directed to the Warning of Potential Future Sanctions in the Magistrate’s
Report and Recommendation.
IT IS SO ORDERED.

________________________________
G. Ross Anderson, Jr.
Senior United States District Judge
July 7 , 2015
Anderson, South Carolina

NOTICE OF RIGHT TO APPEAL
Pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure,
Plaintiff has the right to appeal this Order within thirty (30) days from the date of its
entry. Failure to meet this deadline, as modified by Rule 4 of the Federal Rules of
Appellate Procedure, will waive the right to appeal.

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