Smith v. Bush

Filing 13

ORDER RULING ON REPORT AND RECOMMENDATION adopts 9 Report and Recommendation. Action is DISMISSED WITHOUT PREJUDICE and without requiring Respondent to file an answer or return. A certificate of appealability is DENIED. Signed by Honorable Mary Geiger Lewis on 11/29/2017. (gpre, ) (Main Document 13 replaced by clerk on 11/29/2017; Modified to edit text on 11/29/2017 (gpre, ).

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ANDERSON/GREENWOOD DIVISION ROBERT DAVIS SMITH, Petitioner, vs. WARDEN BUSH, Respondent. § § § § CIVIL ACTION NO. 8:17-2775-MGL-JDA § § § § ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE AND DISMISSING THE PETITION WITHOUT PREJUDICE Petitioner Robert Davis Smith 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 this action be dismissed with prejudice and without requiring Respondent Warden Bush to file an answer or return. 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 November 13, 2017, and the Clerk of Court entered Petitioner’s objections to the Report on November 28, 2017. The Court has carefully reviewed the objections, but holds them to be without merit. It will, thus, enter judgment accordingly. Petitioner’s objections consist of nothing more than a mishmash of allegations, conclusory legal arguments, policy statements, and meritless contentions. He fails, however, to make any make any specific objections to the Report. Accordingly, the Court will overrule the objections. After a thorough review of the Report and the record in this case pursuant to the standard set forth above, the Court overrules Petitioner’s objections, adopts the Report to the extent it does not contradict this Order, and incorporates it herein. Therefore, it is the judgment of the Court this action is DISMISSED WITHOUT PREJUDICE and without requiring Respondent to file an answer or return. . To the extent Petitioner requests a certificate of appealability from this Court, that certificate is DENIED. IT IS SO ORDERED. Signed this 28th day of November, 2017, in Columbia, South Carolina. s/ Mary Geiger Lewis MARY GEIGER LEWIS UNITED STATES DISTRICT JUDGE ***** NOTICE OF RIGHT TO APPEAL The parties are hereby notified of the right to appeal this Order within thirty days from the date hereof, pursuant to Rules 3, 4, and 5 of the Federal Rules of Appellate Procedure. 2

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