Gainey v. South Carolina, State of

Filing 39

ORDER ADOPTING REPORT AND RECOMMENDATIONS of Magistrate Judge Marchant ordering that Respondents' motion for summary judgment 18 be granted, and that the Petition 1 be dismissed, with prejudice. Signed by Honorable Patrick Michael Duffy on 8/26/09. (chub, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA Sandy Gainey, #264149, Petitioner, vs. State of South Carolina; and Anthony Padula, Warden of Lee Correctional Institution, Respondents. ) ) ) ) ) ) ) ) ) ) ) ) C.A. No. 9:08-3900-PMD

ORDER

This matter is before the court upon the magistrate judge's recommendation that respondents' motion for summary judgment be granted. The petitioner filed this habeas corpus petition pursuant to 28 U.S.C. § 2254 on December 2, 2008. Because petitioner is proceeding pro se, this matter was referred to the magistrate judge.1 This Court is charged with conducting a de novo review of any portion of the magistrate judge's report to which a specific objection is registered, and may accept, reject, or modify, in whole or in part, the recommendations contained in that report. 28 U.S.C. § 636(b)(1). However, absent prompt objection by a dissatisfied party, it appears that Congress did not intend for the district court to review the factual and legal conclusions of the magistrate judge. Thomas v Arn, 474 U.S. 140 (1985). Additionally, any party who fails to file timely, written objections to the magistrate judge's report pursuant to 28 U.S.C. § 636(b)(1) waives the right to raise those objections at the appellate

Pursuant to the provisions of Title 28 United States Code, § 636(b)(1)(B), and Local Rule 73.02(B)(2)(c), D.S.C., the magistrate judge is authorized to review pretrial matters and submit findings and recommendations to this Court.
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court level. United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).2 The Magistrate filed his report and recommendation on July 15, 2009. After an extension of time, Petitioner filed his timely objections to the magistrate judge's report on August 21, 2009. A review of the petitioner's objections and the record indicates that the magistrate judge's report accurately summarizes this case and the applicable law. Accordingly, the magistrate judge's report is incorporated into this order. Petitioner's objections fail to directly address the magistrate judge's report, and instead are a restatement of the allegations raised in his petition. Any written objection must specifically identify the portions of the report and recommendation to which objections are made and the basis for such objections. 28 U.S.C. § 636 (b)(1). Generally stated, nonspecific objections have the same effect as would a failure to object. Howard v. Secretary of Health and Human Services, 932 F.2d 505, 509 (6th Cir. 1991). Accordingly, this court agrees with the magistrate judge and finds that respondents' motion for summary judgment is granted, and this case is dismissed.

In Wright v. Collins, 766 F.2d 841 (4th Cir. 1985), the court held "that a pro se litigant must receive fair notification of the consequences of failure to object to a magistrate judge's report before such a procedural default will result in waiver of the right to appeal. The notice must be 'sufficiently understandable to one in appellant's circumstances fairly to appraise him of what is required.'" Id. at 846. Plaintiff was advised in a clear manner that his objections had to be filed within ten (10) days, and he received notice of the consequences at the appellate level of his failure to object to the magistrate judge's report.
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AND IT IS SO ORDERED.

August 26, 2009 Charleston, South Carolina

NOTICE OF APPEAL Petitioner is hereby notified that he has the right to appeal this Order within thirty (30) days from the date hereof pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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