LaSure v. South Carolina Department of Mental Health

Filing 20

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant. IT IS THEREFORE ORDERED that Petitioners § 2241 petition is DISMISSED without prejudice. All pending motions are deemed MOOT. Signed by Honorable R Bryan Harwell on 6/5/2014.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Alfred William LaSure,
Petitioner,
v.
South Carolina Department of
Mental Health,
Respondent.

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Civil Action No.: 9:13-cv-03136-RBH

ORDER

Petitioner Alfred William LaSure, proceeding pro se, filed this civil action under 28 U.S.C.
§ 2241, alleging violations of his constitutional rights.

Specifically, Petitioner challenges the

conditions of his civil commitment to the South Carolina Department of Mental Health’s Sexually
Violent Predator Program. The matter is now before the Court after the issuance of the Report and
Recommendation (“R&R”) of United States Magistrate Judge Bristow Marchant on January 17,
2014.1 See ECF No. 15. In the R&R, the Magistrate Judge recommends that the Court dismiss the
petition without prejudice because Petitioner fails to state a cognizable claim under § 2241.
The Magistrate Judge makes only a recommendation to the 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, 270–71 (1976). The Court is charged with making a de novo
determination of those portions of the R&R 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 to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

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In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02 (D.S.C.), this matter was
referred to the Magistrate Judge for pretrial handling.
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The right to de novo review may be waived by the failure to file timely objections. Orpiano
v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The Court need not conduct a de novo review when a
party makes only “general and conclusory objections that do not direct the [C]ourt to a specific
error in the [M]agistrate’s proposed findings and recommendations.” Id. Moreover, in the absence
of objections to the R&R, the Court is not required to give any explanation for adopting the
recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). However, in the absence of
objections, the Court must “ ‘satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.’ ” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d
310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
The Magistrate Judge recommends that the Court dismiss the petition without prejudice
because Petitioner fails to state a cognizable claim under § 2241. In his objections, Petitioner does
not specifically object to the Magistrate Judge’s recommendation.2 Instead, Petitioner, who has
already attempted to amend his petition twice, submits an amended complaint alleging claims under
42 U.S.C. § 1983. See Fed. R. Civ. P. 15(a)(1) (“A party may amend its pleading once as a matter of
course.” (emphasis added)). Because of the separate rules governing the filing of habeas and nonhabeas actions, this Court finds that converting Plaintiff’s habeas claims to § 1983 claims at this
time in not appropriate. Accordingly, the Court finds no clear error in the Magistrate Judge’s
recommendation, and Petitioner’s petition is dismissed without prejudice.
CONCLUSION
The Court has thoroughly reviewed the entire record, including the motion for summary
judgment, the R&R, objections to the R&R, and applicable law. For the reasons stated above and
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In his objections, Petitioner also asks the Court to order the Department of Mental Health to stop
interfering with his outgoing mail. Such a request is inappropriate by way of objections to an R&R.
To the extent the request is a motion for injunctive relief, the Court finds no basis to grant it without
any legal or factual support. Accordingly, the request is denied.
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by the Magistrate Judge, the Court hereby overrules Petitioner’s objections and adopts the
Magistrate Judge’s R&R.
IT IS THEREFORE ORDERED that Petitioner’s § 2241 petition is DISMISSED without
prejudice. All pending motions are deemed MOOT.
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Florence, South Carolina
June 5, 2014

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