McCall v. Hutchingson

Filing 24

ORDER RULING ON REPORT AND RECOMMENDATION, Court adopts and incorporates the Magistrate Judge's Report 22 ; and the Court grants Respondent's motion for summary judgment 17 . Signed by Honorable Bruce Howe Hendricks on 1/8/21. (rweb, )

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6:20-cv-02034-BHH Date Filed 01/08/21 Entry Number 24 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA GREENVILLE DIVISION David E. McCall, Jr., ) Petitioner, ) ) v. ) ) S.W. Phelps, ) ) Respondent. ) __________________________________ ) Civil Action No.: 6:20-2034-BHH ORDER David E. McCall, Jr. (“Petitioner”) filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the matter was referred to a United States Magistrate Judge for initial review. On December 14, 2020, Magistrate Judge Kevin F. McDonald filed a Report and Recommendation (“Report”) outlining the issues and recommending that the Court grant Respondent’s motion for summary judgment. Attached to the Report was a notice advising Petitioner of the right to file written objections to the Report within fourteen days of being served with a copy. To date, no objections have been filed. The Magistrate Judge makes only a recommendation to the Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo determination only of those portions of the Report to which specific objections are made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). In the absence of specific 6:20-cv-02034-BHH Date Filed 01/08/21 Entry Number 24 Page 2 of 2 objections, the Court reviews the matter only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “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.’”) (quoting Fed. R. Civ. P. 72 advisory committee’s note). Here, because no objections were filed, the Court has reviewed the record, the applicable law, and the findings and recommendations of the Magistrate Judge for clear error. After review, the Court finds no clear error and agrees with the Magistrate Judge that Respondent is entitled to summary judgment on the instant § 2241 petition. Accordingly, the Court adopts and incorporates the Magistrate Judge’s Report (ECF No. 22); and the Court grants Respondent’s motion for summary judgment (ECF No. 17). IT IS SO ORDERED. /s/Bruce H. Hendricks Bruce Howe Hendricks United States District Judge January 8, 2021 Charleston, South Carolina ****** NOTICE OF RIGHT TO APPEAL The parties are hereby notified that any right to appeal this Order is governed by Rules 3 and 4 of the Federal Rules of Appellate Procedure. 2

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