Fortson v. Gonzales et al

Filing 33

ORDER denying 17 Motion for Judgment as a Matter of Law; adopting R 28 Report and Recommendation. The appeal is dismissed. Signed by Honorable Timothy M Cain on 10/23/2012.(gpre, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
SPARTANBURG DIVISION
Major Fortson,
Appellant,
v.
Benico H. Gonzales,
Fanny A. Gonzales,
Appellees.
_______________________________

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C/A No. 8:12-404-TMC
OPINION & ORDER

Appellant, Major Fortson (“Appellant”), proceeding pro se, filed an appeal from the
United States Bankruptcy Court (Dkt. # 1). In accordance with 28 U.S.C. § 636(b)(1)(B) and
Local Rule 73.02(B)(2)(d), D.S.C., all pre-trial proceedings were referred to a Magistrate
Judge.

On October 5, 2012, Magistrate Judge Kevin F. McDonald issued a Report and

Recommendation ("Report") recommending that the Appellant’s motion for judgment (Dkt. #
17) be denied and that the appeal be dismissed. (Dkt. # 28). The Magistrate Judge provided
Appellant a notice advising him of his right to file objections to the Report. (Dkt. # 28-1).
Appellant filed objections to the Magistrate Judge's Report on October 17, 2012. (Dkt. # 32).
The

Magistrate

Judge

makes

only

a

recommendation

to

the

court.

The

recommendation has no presumptive weight. The responsibility to make a final determination
remains with the court. 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 to which specific objection
is made, and the court may accept, reject, or modify, in whole or in part, the recommendation
of the Magistrate Judge, or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
The court is obligated to conduct a de novo review of every portion of the Magistrate
Judge’s report to which objections have been filed. Id. However, the court need not conduct a
de novo review when a party makes only “general and conclusory objections that do not direct
the court to a specific error in the magistrate’s proposed findings and recommendations.”

Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed, specific
objection, the Magistrate Judge’s conclusions are reviewed only for clear error. See Diamond
v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
The Magistrate Judge recommended that the Appellant’s motion for judgment be
denied and that the appeal be dismissed as baseless.

As noted above, Appellant filed

objections to the Report which the Court has carefully reviewed. However, the Appellant’s
objections provide no basis for this court to deviate from the Magistrate Judge’s recommended
disposition. The objections are non-specific, unrelated to the dispositive portions of the Report
or merely restate Appellant’s claims.
After a thorough review of the Report and the record in this case pursuant to the
standard set forth above, the Court finds Appellant’s objections are without merit. Accordingly,
the court adopts the Report and incorporates it herein. It is therefore ORDERED that the
motion for judgment (Dkt. # 17) is DENIED, and the appeal is DISMISSED.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
October 23, 2012

NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and
4 of the Federal Rules of Appellate Procedure.