Holcomb v. Greenville County Clerk of Court et al

Filing 10

ORDER adopting and incorporating 8 Report and Recommendation; dismissing complaint without prejudice and without issuance and service of process. It is further ordered this dismissal is without prejudice to Plaintiff's right to file an amended complaint within 28 days after the Court's Order, but that after such time, the dismissal becomes with prejudice. Signed by Honorable Mary Geiger Lewis on 9/12/2017. (mwal)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA GREENVILLE DIVISION DEAN ALTON HOLCOMB, Plaintiff, vs. GREENVILLE COUNTY CLERK OF COURT; PAUL B. WICKENSIMER; DONNA BEARDEN; LETITIA HAMILTON VERDIN; JUDGE GARRISON HILL, G’ville, S.C.; MAGISTRATE JUDGE JAMES HUDSON, G’ville, S.C.; ASST. SOLICITOR SYLVIA HARRISON, G’ville, S.C.; ASST. SOLICITOR RUSSELL D. GHENT, Spartanburg, S.C.; WALT WILKINS, 13th Circuit Solicitor; BARRY BARNETTE, Spartanburg Solicitor; G’VILLE PUBLIC DEFENDER’S OFFICE; SPARTANBURG PUBLIC DEFENDER’S OFFICE; JOHN VANDERMOSTEN, G.C.D.C. Jail Administrator; WARDEN TIM RILEY, Columbia, S.C. Kirkland C.I.; GENERAL COUNSEL BARTON VINCENT, S.C.D.C.; GENERAL COUNSEL ANNIE RUMLER, S.C.D.C.; MS. ALBERT, Kirkland Mail Supervisor; and MAGISTRATE LELA FOSTER, all in their official and individual capacity, Defendants. § § § § § § § § § § § § § § § § § § § § § § § § § § § § CIVIL ACTION NO. 6:17-02001-MGL ORDER ADOPTING THE REPORT AND RECOMMENDATION AND DISMISSING THE COMPLAINT WITHOUT PREJUDICE AND WITHOUT ISSUANCE AND SERVICE OF PROCESS This case was filed as a 42 U.S.C. § 1983 action. Plaintiff is proceeding pro se. The matter is before the Court for review of the Report and Recommendation (Report) of the United States Magistrate Judge suggesting the Complaint be dismissed without prejudice and without issuance and service of process. The Report further recommends the dismissal be without prejudice to Plaintiff’s right to file an amended complaint within twenty-eight (28) days after the Court’s order, but that after such time, the dismissal becomes with prejudice. The Report was made in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a recommendation to this Court. recommendation has no presumptive weight. remains with the Court. The The responsibility to make a final determination Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1). The Magistrate Judge filed the Report on August 23, 2017, but Plaintiff failed to file any objections to the Report. “[I]n 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). Moreover, a failure to object waives appellate review. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985). After a thorough review of the Report and the record in this case pursuant to the standard set forth above, the Court adopts the Report and incorporates it herein. Therefore, it is the judgment of this Court the Complaint is DISMISSED WITHOUT PREJUDICE and without issuance and service of process. It is further ORDERED this dismissal is without prejudice to Plaintiff’s right to file an amended complaint within 28 days after the Court’s Order, but that after such time, the dismissal becomes with prejudice. IT IS SO ORDERED. Signed this 12th day of September, 2017, in Columbia, South Carolina. s/ Mary Geiger Lewis MARY GEIGER LEWIS UNITED STATES DISTRICT JUDGE ***** NOTICE OF RIGHT TO APPEAL The parties are hereby notified of the right to appeal this Order within thirty days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure. 3

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