Rogers v. Valentino et al

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 10 Report and Recommendations, that Plaintiff's complaint is summarily dismissed without prejudice and without issuance and service of process. The within action is deemed a strike pursuant to § 1915(g). Signed by Honorable Margaret B Seymour on 2/13/09. (kmca)

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA H a yw a r d Leon Rogers, #278510, a/k/a H a yw a rd L. Rogers, ) ) C/A No. 8:08-4090-MBS ) P l a i n t i f f, ) ) v s. ) ) Marta M. Valentino, West Columbia ) ORDER P o lic e Department; Jason Amodio, ) W e s t Columbia Police Department; Wendy ) F r a z i e r , West Columbia Police Department; ) D o n a l d V. Myers, Eleventh Circuit ) S o lic ito rs Office, et al., ) ) D e fe n d a n t s . ) ____________________________________) P la in tiff Hayward Leon Rogers is an inmate in custody of the South Carolina Department of C o r re c tio n s (SCDC). Plaintiff, appearing pro se, filed the within action on December 31, 2008, a l l e gi n g that his constitutional rights have been violated in various respects. Plaintiff brings this a c tio n pursuant to 42 U.S.C. § 1983. In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., the within action was r e fe r r e d to United States Magistrate Judge Bruce H. Hendricks for pretrial handling. The Magistrate J u d ge reviewed the complaint pursuant to 28 U.S.C. § 1915, 28 U.S.C. § 1915A, and the Prison Litiga tio n Reform Act of 1996. On January 6, 2009, the Magistrate Judge issued a Report and R e co m m e n d a tio n in which she noted that Plaintiff previously has been "struck out" pursuant to 28 U .S . C . § 1915(g) because he previously has filed more than three frivolous cases in this court since 1 9 9 7 . Nevertheless, the Magistrate Judge reviewed the allegations of the complaint and found that th e y are barred by Heck v. Humphrey, 512 U.S. 477 (1997) (prohibiting recovery for damages under § 1983 for allegedly unconstitutional conviction, absent proof that conviction has been invalidated).

A c co rd in g, the Magistrate Judge recommended that the complaint be summarily dismissed without p r e ju d ic e and without issuance and service process. The Magistrate Judge further recommended that th e within action be considered a fifth "strike" against Plaintiff. See 28 U.S.C. § 1915(g). Plaintiff file d no objections to the Report and Recommendation. T h e Magistrate Judge makes only a recommendation to this court. The recommendation has n o presumptive weight. The responsibility for making a final determination remains with this court. M a th e w s v. Weber, 423 U.S. 261, 270 (1976). The court is charged with making a de novo d e t e r m i n a t io n of any portions of the Report and Recommendation to which a specific objection is m a d e . The court may accept, reject, or modify, in whole or in part, the recommendation made by the M a gis tra te Judge or may recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). In the absence of objections to the Report, this court is not required to give any e x p l a n a t i o n for adopting the recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). The court has carefully reviewed the record and concurs in the recommendation of the M a gis tra te Judge. The court adopts the Report and Recommendation and incorporates it herein by re fe re n c e . Accordingly, Plaintiff's complaint is summarily dismissed without prejudice and without i s s u a n c e and service of process. The within action is deemed a "strike" pursuant to § 1915(g). I T IS SO ORDERED.

/ s / Margaret B. Seymour United States District Judge C o l u m b ia , South Carolina F e b ru a ry 13, 2009

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NOTICE OF RIGHT TO APPEAL Plaintiff is hereby notified that he has the right to appeal this order pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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