Upchurch v. Wilkie et al

Filing 28

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 15 Report and Recommendations, that Plaintiff's Complaint in the above-captioned case as to Defendant Michael Morin is dismissed without prejudice and without issuance and service of process for this Defendant. Signed by Honorable J Michelle Childs on 10-14-10. (kmca)

-BHH Upchurch v. Wilkie et al

Doc. 28

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA SPARTANBURG DIVISION ) ) Plaintiff, ) ) v. ) ) Phillip Wilkie; Michael Morin, ) individually and in their official capacities, ) ) Defendants. ) ____________________________________) Robert Edgar Upchurch, Jr.,

C.A. No. 7:10-CV-01819-JMC-BHH

ORDER

The pro se plaintiff brings this action under 42 U.S.C. § 1983. The Magistrate Judge's Report and Recommendation [Entry # 15], filed on August 9, 2010, recommends that the court summarily dismiss the Complaint as to Defendant Michael Morin based on prosecutorial immunity. The Report and Recommendation sets forth in detail the relevant facts and legal standards on this matter, and the court incorporates the Magistrate Judge's recommendation without a recitation. The Magistrate Judge's Report and Recommendation is made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objections are made, and the court may accept, reject, or modify, in whole or in part, the Magistrate Judge's recommendation or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1). 1

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Plaintiff was advised of his right to file objections to the Report and Recommendation [Entry # 15, at 5]. However, Plaintiff filed no objections to the Report and Recommendation. In the absence of objections to the Magistrate Judge's Report and Recommendation, this court is not required to provide an explanation for adopting the recommendation. See 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). Furthermore, failure to file specific written objections to the Report and Recommendation results in a party's waiver of the right to appeal from the judgment of the District Court based upon such recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984). After a thorough review of the Report and Recommendation and the record in this case, the court adopts the Magistrate Judge's Report and Recommendation and incorporates it herein. It is therefore ORDERED that Plaintiff's Complaint in the above-captioned case as to Defendant Michael Morin is dismissed without prejudice and without issuance and service of process for this Defendant. IT IS SO ORDERED. s/ J. Michelle Childs United States District Judge Greenville, South Carolina October 14, 2010 2