Witchard v. Meeks et al

Filing 13

ORDER RULING ON REPORT AND RECOMMENDATION adopting 11 Report and Recommendation. the Petition is DISMISSED WITHOUT PREJUDICE AND WITHOUT REQUIRING THE RESPONDENT TO FILE AN ANSWER OR RETURN. The Court declines to issue a certificate of appealability. Signed by Honorable G Ross Anderson, Jr on 7/10/2015. (gpre, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Joseph Witchard #12216-018,

)
)
Petitioner,
)
)
v.
)
)
B.J. Meeks, Warden, F.C.I.
)
Williamsburg,
)
)
Respondent.
)
_________________________________ )

C/A No.: 8:15-cv-1958-GRA

ORDER
(Written Opinion)

This matter comes before this Court for review of United States Magistrate
Judge Jacquelyn D. Austin’s Report and Recommendation made in accordance with
28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) DSC, and filed on June
10, 2015. ECF No. 11.
Petitioner Joseph Witchard (“Petitioner”), proceeding pro se, filed this action
pursuant to 28 U.S.C. § 2241 on May 19, 2015. ECF No. 1. Petitioner was granted
leave to proceed in forma pauperis. ECF No. 9. Under established procedure in this
judicial district, Magistrate Judge Austin made a thorough and careful review of the
Petition and now recommends that this Court dismiss this case without prejudice and
without requiring the Respondent to file an answer or return. ECF No. 11. For the
reasons discussed herein, this Court adopts the Magistrate Judge’s recommendation
in its entirety and dismisses this case without prejudice and without requiring the
Respondent to file an answer or return.
Petitioner brings this petition pro se. This Court is required to construe pro se
pleadings liberally. Such pleadings are held to a less stringent standard than those

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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). However, a district court may not construct the petitioner'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 unravel them.” Beaudett v. City of Hampton, 775 F.2d 1274,
1277 (4th Cir.1985), cert. denied, 475 U.S. 1088 (1986).
Petitioner brings this claim in forma pauperis under 28 U.S.C. § 1915, which
permits an indigent litigant to commence an action in federal court without prepaying
the administrative costs of proceeding with the lawsuit. To protect against possible
abuses of this privilege, the statute requires a district court to dismiss the case upon a
finding that the action “is frivolous or malicious,” “fails to state a claim on which relief
may be granted,” or “seeks monetary relief against a defendant who is immune from
such relief.” 28 U.S.C. § 1915(e)(2)(B).
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 judge." 28 U.S.C. § 636(b)(1). This Court

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may also "receive further evidence or recommit the matter to the magistrate judge
with instructions." Id.
In order for objections to be considered by a United States District Judge, the
objections must be timely filed and must specifically identify the portions of the Report
and Recommendation to which the party objects and the basis for the objections.
Fed. R. Civ. P. 72(b); see Wright v. Collins, 766 F.2d 841, 845–47 nn.1–3 (4th Cir.
1985); United States v. Schronce, 727 F.2d 91, 94 n.4 (4th Cir. 1984). “Courts have .
. . held de novo review to be unnecessary in . . . situations when a party makes
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 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).
The failure to file objections to the Report and Recommendation waives any
further right to appeal when the parties have been warned that they must object to
preserve appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); see also
Carter v. Pritchard, 34 F. App’x 108, 108 (4th Cir. 2002) (unpublished per curiam
decision).

In the present case, Petitioner received a copy of the Report and

Recommendation, which contained a “Notice of Right to File Objections to Report and
Recommendation.”

ECF No. 11.

The Notice warned that “[f]ailure to timely file

specific written objections to this Report and Recommendation will result in waiver of
the right to appeal from a judgment of the District Court based upon such
Recommendation.” Id. The deadline for filing objections was June 29, 2015. See id.

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Petitioner did not file any objections to the Magistrate Judge’s Report and
Recommendation.
After a review of the record, this Court finds that the Magistrate Judge’s Report
and Recommendation accurately summarizes the case and the applicable law.
Accordingly, the Report and Recommendation is accepted and adopted in its entirety.
IT IS THEREFORE ORDERED that the Petition is DISMISSED WITHOUT
PREJUDICE AND WITHOUT REQUIRING THE RESPONDENT TO FILE AN
ANSWER OR RETURN. The Court declines to issue a certificate of appealability in
this matter.
IT IS SO ORDERED.

________________________________
G. Ross Anderson, Jr.
Senior United States District Judge
July 10 , 2015
Anderson, South Carolina

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