Blakely v. Devos et al

Filing 20

ORDER RULING ON REPORT AND RECOMMENDATION adopting 16 Report and Recommendation as set out. Signed by Honorable Bruce Howe Hendricks on 1/17/20. (alew, )

6:20-cv-02721-BHH

Date Filed 11/17/20

Entry Number 20

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Mark Eugene Blakely,

)
Petitioner, )
)
v.
)
)
Betsy Devos, Natalie R. Hunter, Phylllis
)
Gibson, Paul Wickenseimer,
)
)
Respondents. )
__________________________________ )

Civil Action No. 6:20-2721-BHH

ORDER

Mark Eugene Blakely (“Petitioner”) filed a pro se non-prisoner petition for a writ of
mandamus. (ECF No. 1.) In accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2) (D.S.C.), the matter was referred to a United States Magistrate Judge for initial
review.
On October 6, 2020, the Magistrate Judge filed a Report and Recommendation
(“Report”) outlining the issues and recommending that the Court dismiss the petition without
prejudice and without issuance and service of process because this action is not only
frivolous, but duplicative of four prior actions filed by Petitioner. (ECF No. 16.) The
Magistrate Judge also recommends that Petitioner be sanctioned $400.00 payable to the
Clerk of Court, and if Petitioner tries to file another action prior to paying the sanction, that
the Magistrate Judge may (1) instruct the petitioner to pay the sanctions (and if the
sanctions are not paid, dismiss the action without prejudice and without issuance and
service of process) or (2) certify that the action is not frivolous. (Id. at 6.) 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. (Id. at 7.) To date, no objections have
been filed.

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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
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. Finding none, the Court agrees that the petition should be dismissed without
prejudice and without issuance and service of process.
Therefore, it is ordered:
(1) that the Petition be dismissed without prejudice and without issuance and
service of process;
(2) that Petitioner is sanctioned $400.00 payable to the Clerk of Court. The Petitioner
is directed to mail the check to 300 E. Washington Street, Greenville, SC 29601;
(3) that if Petitioner tries to file another action prior to paying the sanction, that the
Magistrate Judge may (a) instruct Petitioner to pay the sanctions (and if the sanctions are
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not paid, dismiss the action without prejudice and without issuance and service of process)
or (b) certify that the action is not frivolous.
IT IS SO ORDERED.
/s/Bruce H. Hendricks
United States District Judge
November 17, 2020
Greenville, 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.

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