Dash v. Sellers et al

Filing 17

ORDER adopting the Report and Recommendations of Magistrate Judge Bristow Marchant dismissing Plaintiffs Complaint (ECF No. 1) without prejudice and without issuance and service of process. Signed by Honorable J Michelle Childs on 12/5/2017.(cwhi, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA BEAUFORT DIVISION Frankie Lee Dash, a/k/a/ Frank Lee Dash, ) ) Plaintiff, ) ) v. ) ) Associate Warden Sellers and Warden Eagleton, ) ) Defendants. ) __________________________________________) Civil Action No.: 9:17-cv-1716-JMC ORDER This matter is before the court upon review of the Magistrate Judge’s Report and Recommendation (“Report”) (ECF No. 15), filed on November 14, 2017, recommending that the court dismiss Plaintiff’s Complaint without prejudice and without issuance and service of process because Plaintiff has failed to set forth facts sufficient to state a claim. The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d) for the District of South Carolina. The Magistrate Judge makes only a recommendation to this court, which has no presumptive weight. The responsibility to make a final determination remains with this court. See 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 Report to which specific objections are made. Fed. R. Civ. P. 72(b)(2)-(3). The parties were advised of their right to file objections to the Report. (ECF No. 15 at 9.) However, neither party filed any objections to the Report. In the absence of objections to the Magistrate Judge’s Report, this court is not required to provide an explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, “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.’” 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). Furthermore, failure to file specific written objections to the Report results in a party’s waiver of the right to appeal from the judgment of the District Court based upon such recommendation. 28 U.S.C. § 636(b)(1); see Wells v. Shriners Hosp., 109 F.3d 198, 200 (4th Cir. 1997) (“[t]he Supreme Court has authorized the waiver rule that we enforce. . . . ‘[A] court of appeals may adopt a rule conditioning appeal, when taken from a district court judgment that adopts a magistrate's recommendation, upon the filing of objections with the district court identifying those issues on which further review is desired.’”) (citing Thomas v. Arn, 474 U.S. 140, 155 (1985)). After a thorough review of the Report and the record in this case, the court finds the Report provides an accurate summary of the facts and law. The court ACCEPTS the Magistrate Judge’s Report and Recommendation (ECF No. 15) dismissing Plaintiff’s Complaint (ECF No. 1) without prejudice and without issuance and service of process. IT IS SO ORDERED. United States District Judge December 5, 2017 Columbia, South Carolina

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