Rivera v. Byars et al

Filing 74

ORDER Accepting 71 Report and Recommendation. For the reasons articulated by the magistrate judge, it is therefore ORDERED that Plaintiff's 1 Complaint is DISMISSED pursuant to Federal Rule of Civil Procedure 41(b). Signed by Honorable J Michelle Childs on 11/7/13. (kmca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION

Kenneth Syncere Rivera a/k/a
Kenneth Rivera,

)
)
)
Plaintiff,
)
)
v.
)
)
)
Agency Director William R. Byars, Jr.;
)
Warden Larry Cartledge; Maria Leggins;
)
Nancy Merchant; Ms. NFN Holliday; and )
Ms. H. Davis,
)
)
Defendants.
)
____________________________________)

Civil Action No. 8:13-cv-00553-JMC

ORDER

This matter is before the court for review of the magistrate judge's Report and
Recommendation (“Report”), [ECF No. 71], filed on October 16, 2013, recommending that
Plaintiff’s Complaint [ECF No. 1] be dismissed pursuant to Federal Rule of Civil Procedure 41(b).
Plaintiff brought this action seeking relief pursuant to Title 42 U.S.C. §1983. The Report sets forth
in detail the relevant facts and legal standards on these matters which the court incorporates herein
without a recitation.
The magistrate judge's Report 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
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).

Plaintiff was advised of his right to file objections to the Report [ECF No. 71-1]. However,
Plaintiff filed no objections to the Report.
In the absence of objections to the magistrate judge's Report, 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 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).
Therefore, after a thorough and careful review of the magistrate judge’s Report and
Recommendation and the record in this case, the court finds the magistrate judge’s Report provides
an accurate summary of the facts and law in the instant case and the record in this case. The court
ACCEPTS the Report and Recommendation [ECF No. 71]. For the reasons articulated by the
magistrate judge, it is therefore ORDERED that Plaintiff’s Complaint [ECF No. 1] is DISMISSED
pursuant to Federal Rule of Civil Procedure 41(b).

IT IS SO ORDERED.

United States District Judge
November 7, 2013
Greenville, South Carolina

2