Demmirio v. Ozmint et al

Filing 17

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS 11 , finding as moot Plaintiff's 4 Motion for TRO/Motion for Preliminary Injunction, and granting Plaintiff's 15 Motion to Dismiss. This action is dismissed without prejudice and without issuance and service of process. Signed by Honorable Cameron McGowan Currie on 9/20/2010. (ncha, ) Modified on 9/20/2010 to edit text (ncha, ).

Demmirio v. Ozmint et al

Doc. 17

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA GREENWOOD DIVISION Hamid Demmirio, #115800, ) ) Plaintiff, ) ) v. ) ) Jon Ozmint, Director of SCDC; Eugene ) Skipper, Contraband Sgt.; Mr. Simmons, ) Contraband Officers; Mitchell ) McCommons, Cpl.; Mr. T. Nettles, Major, ) and Vera Jenkins, Grievance Coordinator, ) ) Defendants. ) ___________________________________ ) C/A NO. 8:10-2281-CMC-BHH

OPINION and ORDER

This matter is before the court on Plaintiff's pro se complaint, filed in this court pursuant to 42 U.S.C. § 1983. 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 September 9, 2010, the Magistrate Judge issued a Report recommending that the complaint be dismissed without prejudice and without issuance and service of process. The Magistrate Judge advised Plaintiff of the procedures and requirements for filing objections to the Report and the serious consequences if he failed to do so. On September 17, 2010, Plaintiff filed a motion to dismiss. Dkt. # 15. 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 1

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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 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. Based upon the Magistrate Judge's recommendation and Plaintiff's motion to dismiss, Plaintiff's motion to dismiss is granted and this action is dismissed without prejudice and without issuance and service of process.1 Plaintiff's motion for "TRO and/or preliminary injunction" is moot.

Plaintiff seeks copies of the material which he provided to the court in conjunction with the filing of his complaint. The Clerk is directed to send Plaintiff a copy of his complaint and its attachments. 2

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IT IS SO ORDERED. s/ Cameron McGowan Currie CAMERON MCGOWAN CURRIE UNITED STATES DISTRICT JUDGE

Columbia, South Carolina September 20, 2010
C:\Documents and Settings\nac60\Desktop\10-2281 order.wpd

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