Hearn v. Johnson et al

Filing 10

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 7 Report and Recommendations, that this matter is remanded to the Richland County Court of Common Pleas. Signed by Honorable Cameron McGowan Currie on 11/5/08. (kmca)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA GREENWOOD DIVISION John W. Hearn, #145356, ) ) Plaintiff, ) ) v. ) ) Tonya Johnson, SCDC Lt; Nike Priester, ) SCDC Officer, Sim Fogle; South Carolina ) Department of Corrections, ) ) Defendants. ) ___________________________________ ) C/A NO. 8:08-3272-CMC-BHH ORDER

This matter is before the court on Plaintiff's pro se complaint, which was removed to this court by Defendants under a claim of federal question jurisdiction. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(d), DSC, this matter was referred to United States Magistrate Judge Bruce Howe Hendricks for pre-trial proceedings and a Report and Recommendation ("Report"). On October 16, 2008, the Magistrate Judge issued a Report recommending that this matter be remanded to the Richland County Court of Common Pleas. The Magistrate Judge advised the parties of the procedures and requirements for filing objections to the Report and the serious consequences if they failed to do so. Plaintiff has filed material supporting remand of this matter to state court; Defendants have filed no objections and the time for doing so has expired. The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of any portion of the Report of the Magistrate Judge to which a 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 to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b). The court reviews the Report only for clear error in the absence of an objection. 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.") (citation omitted). After reviewing the record of this matter, the applicable law, and the Report and Recommendation of the Magistrate Judge, the court agrees with the conclusions of the Magistrate Judge. Accordingly, the court adopts and incorporates the Report and Recommendation by reference in this Order. This matter is remanded to the Richland County Court of Common Pleas. IT IS SO ORDERED. s/ Cameron McGowan Currie CAMERON MCGOWAN CURRIE UNITED STATES DISTRICT JUDGE Columbia, South Carolina November 5, 2008

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