Smith v. South Carolina Dept of Corrections, The

Filing 33

ORDER RULING ON REPORT AND RECOMMENDATION 29 . It is ordered that Smith's complaint, docket number 1, is dismissed with prejudice, without further leave to amend, and without issuance and service of process. It is further ordered that this action is designated as a strike pursuant to 28 U.S.C. § 1915(g). Signed by Honorable Henry M Herlong, Jr on 9/15/2022. (kric, )

6:22-cv-01433-HMH

Date Filed 09/15/22

Entry Number 33

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION

Khammesherma Smith,
Plaintiff,
vs.
M. Lawrence, J. Richburg, Officer
Mixon,
Defendants.

)
)
)
)
)
)
)
)
)
)

C.A. No. 6:22-01433-HMH

OPINION & ORDER

This matter is before the court for review of the Report and Recommendation of United
States Magistrate Judge Kevin F. McDonald made in accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02 for the District of South Carolina.1 Plaintiff Khammesherma Smith
(“Smith”), a state prisoner proceeding pro se, filed this action alleging violations of his
constitutional rights pursuant to 42 U.S.C. § 1983. In his Report and Recommendation filed on
September 6, 2022, Magistrate Judge McDonald recommended that this court dismiss this action
with prejudice, without further leave to amend, and without issuance and service of process and
further recommended that this action be designated as a “strike” pursuant to 28 U.S.C.
§ 1915(g). (R&R, generally, ECF No. 29.)
Smith timely filed objections to the Report and Recommendation. (Objs., generally,

1

The recommendation has no presumptive weight, and the responsibility for making a
final determination remains with the United States District Court. See 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 and Recommendation to which specific objection is made. The court may
accept, reject, or modify, in whole or in part, the recommendation made by the magistrate judge
or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
1

6:22-cv-01433-HMH

Date Filed 09/15/22

Entry Number 33

Page 2 of 3

ECF No. 31.) Objections to the Report and Recommendation must be specific. Failure to file
specific objections constitutes a waiver of a party’s right to further judicial review, including
appellate review, if the recommendation is accepted by the district judge. See United States v.
Schronce, 727 F.2d 91, 94 & n.4 (4th Cir. 1984). In the absence of specific objections to the
Report and Recommendation of the magistrate judge, this court is not required to give any
explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir.
1983).
Upon review, the court finds that Smith’s objections are non-specific, unrelated to the
dispositive portions of the magistrate judge’s Report and Recommendation, or merely restate his
claims. Therefore, after a thorough review of the magistrate judge’s Report and the record in
this case, the court adopts Magistrate Judge McDonald’s Report and Recommendation and
incorporates it herein.
It is therefore
ORDERED that Smith’s complaint, docket number 1, is dismissed with prejudice,
without further leave to amend, and without issuance and service of process. It is further
ORDERED that this action is designated as a “strike” pursuant to 28 U.S.C. § 1915(g).
IT IS SO ORDERED.

s/Henry M. Herlong, Jr.
Senior United States District Judge
Greenville, South Carolina
September 15, 2022

2

6:22-cv-01433-HMH

Date Filed 09/15/22

Entry Number 33

Page 3 of 3

NOTICE OF RIGHT TO APPEAL
Plaintiff is hereby notified that he has the right to appeal this order within thirty (30) days
from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

3