Porter v. Thomas

Filing 46

ORDER RULING ON REPORT AND RECOMMENDATION adopts 43 Report and Recommendation. Petition is DISMISSED pursuant to Federal Rule of Civil Procedure 41(b). A certificate of appealability is DENIED. Signed by Honorable Mary Geiger Lewis on 8/7/2017. (gpre, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ANDERSON/GREENWOOD DIVISION GERALD PORTER, Petitioner, vs. L.R. THOMAS, Warden of Federal Prison Camp Edgefield, Respondent. § § § § CIVIL ACTION NO. 8:15-03584-MGL-JDA § § § § ORDER ADOPTING THE REPORT AND RECOMMENDATION AND DISMISSING THE PETITION PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 41(B) Petitioner filed this as a 28 U.S.C. § 2241 action. He is proceeding pro se. The matter is before the Court for review of the Report and Recommendation (Report) of the United States Magistrate Judge suggesting Petitioner’s petition be dismissed pursuant to Federal Rule of Civil Procedure 41(b). The Report was made in accordance with 28 U.S.C. § 636 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 the Court. Mathews v. Weber, 423 U.S. 261, 270 (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 Magistrate Judge filed the Report on July 18, 2017, but Petitioner failed to file any objections. “[I]n 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). Moreover, a failure to object waives appellate review. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985). After a thorough review of the Report and the record in this case pursuant to the standard set forth above, the Court adopts the Report and incorporates it herein. Therefore, it is the judgment of this Court Petitioner’s petition is DISMISSED pursuant to Federal Rule of Civil Procedure 41(b). To the extent Petitioner moves for a certificate of appealability, such request is DENIED. IT IS SO ORDERED. Signed this 7th day of August, 2017, in Columbia, South Carolina. s/ Mary G. Lewis MARY G. LEWIS UNITED STATES DISTRICT JUDGE ***** NOTICE OF RIGHT TO APPEAL Petitioner is hereby notified of the right to appeal this Order within sixty days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure. 2

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