Harper v. Mansukhani

Filing 42

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; granting 15 Motion. This Petition is dismissed, with prejudice. Signed by Honorable G Ross Anderson, Jr on 11/24/2015.(cwhi, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Don Alton Harper,

)
)
Petitioner,
)
)
v.
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)
A. Mahsukhani, Warden,
)
)
Respondent.
)
_________________________________ )

C/A No.: 9:15-cv-1005-GRA-BM

ORDER
(Written Opinion)

This matter comes before this Court for review of United States Magistrate
Judge Bristow Marchant’s Report and Recommendation made in accordance with 28
U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) DSC, and filed on October
28, 2015. ECF No. 37.
Petitioner Don Alton Harper (“Petitioner”), proceeding pro se, filed this action
pursuant to 28 U.S.C. § 2241 on March 2, 2015. ECF No. 1. Petitioner was granted
leave to proceed in forma pauperis. ECF No. 11. Respondent filed a motion to
dismiss and/or for summary judgment on May 28. 2015. ECF 15. A Roseboro order
was entered by the Court on May 29, 2015, advising the Petitioner of the importance
of the dispositive motion and of the need for him to file an adequate response within
thirty-four (34) days. ECF No. 16. Petitioner filed multiple responses in opposition to
Respondent’s motion. See ECF Nos. 18, 19, 20 & 24. On September 22, 2015,
Magistrate Judge Marchant entered a text order directing the Respondent to file a
supplemental memorandum within fifteen (15) days addressing a discrepancy in the
release date listed in an exhibit on a document from the Regional Director, and

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allowing Petitioner fifteen (15) days to file any additional memorandum addressing
the same issue. ECF No. 30. Both parties filed responses to the Court’s September
22, 2015 order. See ECF Nos. 33, 34 & 35.
On October 28, 2015, Magistrate Judge Marchant made a thorough and
careful review of the Petition and recommends that this Court grant Respondent’s
Motion, and dismiss the Petition with prejudice. ECF No. 37. Petitioner filed a timely
objection to the Report and Recommendation on November 9, 2015, ECF No. 39,
and a supplemental objection on November 16, 2015. ECF No. 41. For the reasons
discussed herein, this Court adopts the Magistrate Judge’s recommendation in its
entirety and dismisses this case with prejudice.
Petitioner brings this petition pro se. This Court is required to construe pro se
pleadings liberally. Such pleadings are held to a less stringent standard than those
drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). This
Court is charged with liberally construing a pleading filed by a pro se litigant to allow
for the development of a potentially meritorious claim. Boag v. MacDougall, 454 U.S.
364, 365 (1982). However, a district court may not construct the petitioner's legal
arguments for him, Small v. Endicott, 998 F.2d 411 (7th Cir.1993), nor is a district
court required to recognize “obscure or extravagant claims defying the most
concerted efforts to unravel them.” Beaudett v. City of Hampton, 775 F.2d 1274,
1277 (4th Cir.1985), cert. denied, 475 U.S. 1088 (1986).
Petitioner brings this claim in forma pauperis under 28 U.S.C. § 1915, which
permits an indigent litigant to commence an action in federal court without prepaying
the administrative costs of proceeding with the lawsuit. To protect against possible

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abuses of this privilege, the statute requires a district court to dismiss the case upon a
finding that the action “is frivolous or malicious,” “fails to state a claim on which relief
may be granted,” or “seeks monetary relief against a defendant who is immune from
such relief.” 28 U.S.C. § 1915(e)(2)(B).
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 this Court. Mathews v. Weber, 423 U.S. 261, 270–71
(1976). This Court is charged with making a de novo determination of those portions
of the Report and Recommendation to which specific objection is made, and this
Court may "accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). This Court
may also "receive further evidence or recommit the matter to the magistrate judge
with instructions." Id.
In order for objections to be considered by a United States District Judge, the
objections must be timely filed and must specifically identify the portions of the Report
and Recommendation to which the party objects and the basis for the objections.
Fed. R. Civ. P. 72(b); see Wright v. Collins, 766 F.2d 841, 845–47 nn.1–3 (4th Cir.
1985); United States v. Schronce, 727 F.2d 91, 94 n.4 (4th Cir. 1984). “Courts have .
. . held de novo review to be unnecessary in . . . situations when a party makes
general and conclusory objections that do not direct the court to a specific error in the
magistrate’s proposed findings and recommendations.”

Orpiano v. Johnson, 687

F.2d 44, 47 (4th Cir. 1982). In the absence of specific objections to the Report and

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Recommendation, this Court is not required to give any explanation for adopting the
recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
Having reviewed Plaintiff’s objections, this Court finds that the objections are
unrelated to the dispositive portions of the magistrate judge’s Report and
Recommendation, and merely restate his claims. As such, the objections lack
specificity to trigger de novo review and will not be addressed.
After a review of the record, this Court finds that the Magistrate Judge’s Report
and Recommendation accurately summarizes the case and the applicable law.
Accordingly, the Report and Recommendation is accepted and adopted in its entirety.
IT IS THEREFORE ORDERED that Respondent’s Motion is GRANTED, and
the Petition is DISMISSED, with prejudice. The Court declines to issue a certificate of
appealability in this matter.
IT IS SO ORDERED.

November 24, 2015
Anderson, South Carolina

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