Witherspoon v. Matthews et al

Filing 20

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; denying without prejudice 11 Motion for Leave to Proceed in forma pauperis. Plaintiffs Complaint is DISMISSED WITHOUT PREJUDICE and without issuance and service of process.Signed by Honorable Mary Geiger Lewis on 8/1/2017.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
JARODE JERMAINE WITHERSPOON,
a/k/a Jarode J. L. Witherspoon,
Plaintiff,
vs.
JOHNNY A. MATTHEWS, Inmate; NFN
BAXTER, Inmate; CIS PROGRAM;
MENTAL HEALTH INMATES; KIM
JONES; SGT. V. HARRIS, SMU Post;
A/W WARDEN GARY LANE; NURSE
JOANN; MEDICAL; NURSE GAH GAH;
and KIRKLAND CORRECTIONAL
INSTITUTION,
Defendants.

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CIVIL ACTION NO. 9:17-00020-MGL

ORDER ADOPTING THE REPORT AND RECOMMENDATION,
DISMISSING PLAINTIFF’S COMPLAINT WITHOUT PREJUDICE
AND WITHOUT ISSUANCE AND SERVICE OF PROCESS,
AND DENYING PLAINTIFF’S MOTION TO PROCEED
IN FORMA PAUPERIS WITHOUT PREJUDICE
This case was filed as a 42 U.S.C. § 1983 action. Plaintiff 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 the Court dismiss Plaintiff’s Complaint without prejudice and without
issuance and service of process and deny Plaintiff’s motion to proceed in forma pauperis without
prejudice. 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 July 14, 2017, but Plaintiff failed to file any
objections to the Report. “[I]n 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.’” Diamond v. Colonial Life & Acc. Ins. Co.,
416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
Moreover, a failure to object waives appellate review. Wright v. Collins, 766 F.2d 841, 845-46 (4th
Cir. 1985).
After a thorough review of the Report and the record in this case pursuant to the standard set
forth above, the Court adopts the Report and incorporates it herein. Therefore, it is the judgment
of the Court Plaintiff’s Complaint is DISMISSED WITHOUT PREJUDICE and without issuance
and service of process and Plaintiff’s motion to proceed in forma pauperis is DENIED WITHOUT
PREJUDICE.

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IT IS SO ORDERED.
Signed this 1st day of August, 2017, in Columbia, South Carolina.

s/ Mary Geiger Lewis
MARY GEIGER LEWIS
UNITED STATES DISTRICT JUDGE

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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 and 4 of the Federal Rules of Appellate Procedure.

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