Baylor et al v. Fish et al

Filing 19

ORDER RULING ON REPORT AND RECOMMENDATION granting 17 Motion to Dismiss, denying Motion for Refund of Filing Fee filed by Cleo Baylor, Remedios Baylor, declining to adopt 13 Report and Recommendation. Signed by Honorable G Ross Anderson, Jr on 8/23/13. (alew, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
)
)
)
Plaintiff,
)
)
v.
)
)
Attorney Kenneth W. Fish; Diane
Hayes, d/b/a Diane Hayes Greenwood )
)
County Assessor’s Office; Angela
)
Woodhurst, d/b/a Angela Woodhurst,
)
CCCP and GS; Greenwood County;
)
Citicorp Bank, FSB, n/k/a Citibank;
)
Curtis G. Clark, Special Referee
)
Greenwood County; Lillie Kate
)
Womack; Katherine Clark; Transit
Leasing; Richard R. Bell; Country Bank; )
)
Green Bank and Trust; Moss &
Associates, Attorneys, P.A.; Save Your )
Home Law Center; Delfini Glover; Riley, )
Pope & Laney, LLC; Sheriff Tony Davis, )
Greenwood County Sheriff Department; )
)
Dr. Eugene Gay; Attorney Sandra L.
Burr, Burr & Associates, LLC; Attorney )
Brett F. Kline, Burr & Associates, LLC; )
)
Robin Murdock; Beverly A. Grimes;
)
Ford Motor Credit Company; Chase
Home Finance, LLC; Gerald and Garcia )
)
Glur,
)
Defendants. )
________________________________ )
Cleo Baylor; Remedios Baylor,

C/A No.: 8:13-1660-GRA

ORDER
(Written Opinion)

This matter comes before the Court for review of United States Magistrate
Judge Kevin McDonald’s Report and Recommendation made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(d) DSC. Plaintiffs, proceeding as
pro se litigants, filed this civil action on June 18, 2013. ECF No. 1. Magistrate Judge

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McDonald filed a Proper Form Order on July 8, 2013, requiring that the Plaintiffs’
complaint be put in an appropriate form for service. ECF No. 8. 
Under established procedure in this judicial district, Magistrate Judge
McDonald made a careful review of the pro se complaint pursuant to the procedural
provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) DSC. Magistrate
Judge McDonald recommends that this Court dismiss Plaintiffs’ case without
prejudice under Rule 41 of the Federal Rules of Civil Procedure for failure to comply
with the previous order directing the Plaintiffs to put their complaint in proper form,
and for failure to prosecute. ECF No. 13. Plaintiffs filed their own pro se Motion to
Dismiss and request for a refund of filing fees on August 21, 2013. ECF No. 17. For
the reasons discussed herein, this Court declines to adopt the Magistrate Judge’s
Report and Recommendation and grants Plaintiffs’ Motion to Dismiss, but denies
Plaintiffs’ refund request.
Standard of Review
Plaintiff brings this claim pro se. This Court is required to construe pro se
pleadings liberally. Such pleadings are held to a less stringent standard than those
drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). This
Court is charged with liberally construing a pleading filed by a pro se litigant to allow
for the development of a potentially meritorious claim. Boag v. MacDougall, 454 U.S.
364, 365 (1982). A court may not construct the plaintiff's legal arguments for him,
Small v. Endicott, 998 F.2d 411 (7th Cir.1993), nor is a district court required to
recognize “obscure or extravagant claims defying the most concerted efforts to

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unravel them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1277 (4th Cir.1985), cert.
denied, 475 U.S. 1088 (1986).
Discussion
Magistrate Judge McDonald recommends dismissing the Plaintiffs’ case for
failure to prosecute and for failure to comply with the Proper Form Order. See Report
and Recommendation, ECF No. 13.
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 this Court. Mathews v. Weber, 423 U.S. 261, 270–71
(1976). This Court is charged with making a de novo determination of those portions
of the Report and Recommendation to which specific objection is made, and this
Court may "accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). This Court may
also "receive further evidence or recommit the matter to the magistrate with
instructions." Id. “The failure to file objections to the report and recommendation
waives any further right to appeal.” Smith v. Detroit Fed’n of Teachers Local 231, 829
F.2d 1370, 1373 (6th Cir. 1987); see Carter v. Pritchard, 34 F. App’x 108, 108 (4th
Cir. 2002) (per curiam). Furthermore, in the absence of specific objections to the
Report and Recommendation, this Court is not required to give any explanation for
adopting the recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
In this case, August 26, 2013 was the deadline for filing objections. Prior to
this deadline, however, Plaintiffs filed a Motion to Dismiss their complaint and
additionally requested that the Court refund $400.00 in filing fees. ECF No. 17. After

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reviewing Plaintiffs’ Motion to Dismiss and the record, the Court finds that Plaintiffs’
request to dismiss their case appears to be appropriate under the circumstances.
However, the Court declines to refund Plaintiffs’ filing fee of $400.00.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Dismiss is GRANTED.
However, Plaintiffs’ request for a refund of $400.00 in filing fees is DENIED.
IT IS SO ORDERED.

August 23 , 2013
Anderson, South Carolina

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