Flores-Sanchez v. Mitchell

Filing 27

ORDER adopting 24 Report and Recommendations and denying 19 Motion to Dismiss. This matter is returned to the Magistrate Judge for further pretrial proceedings. Signed by Honorable Cameron McGowan Currie on 3/21/11.(rpol, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA BEAUFORT DIVISION Efrain Flores-Sanchez, #06473-090, ) ) Plaintiff, ) ) v. ) ) Warden Mary M. Mitchell, ) ) Defendant. ) ___________________________________ ) C/A NO. 9:10-1696-CMC-BM

OPINION and ORDER

This matter is before the court on Plaintiff's pro se complaint, filed in this court pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(d), DSC, this matter was referred to United States Magistrate Judge Bristow Marchant for pre-trial proceedings and a Report and Recommendation ("Report"). On February 23, 2011, the Magistrate Judge issued a Report recommending that Defendant's motion to dismiss be denied. The Magistrate Judge advised the parties of the procedures and requirements for filing objections to the Report and the serious consequences if they failed to do so. Neither party has filed objections to the Report and the time for doing so has expired. 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 the court. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of any portion of the Report of the Magistrate Judge to which a specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by

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the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b). The court reviews the Report only for clear error in the absence of an objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that "in 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.") (citation omitted). After reviewing the record of this matter, the applicable law, and the Report and Recommendation of the Magistrate Judge, the court agrees with the Report and its conclusions. Therefore, the court adopts and incorporates the Report by reference in this order. Defendant's motion to dismiss (Dkt. #19, filed Dec. 20, 2010) is denied. This matter is returned to the Magistrate Judge for further pretrial proceedings. IT IS SO ORDERED. s/ Cameron McGowan Currie CAMERON MCGOWAN CURRIE UNITED STATES DISTRICT JUDGE

Columbia, South Carolina March 21, 2011

C:\Documents and Settings\Guest\Local Settings\Temp\notesFFF692\10-1696 Flores-Sanchez v. Mitchell adopt rr deny dft m to dism return to USMJ further proceedings.wpd

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