Foster v. Curry et al

Filing 44

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; granting 28 Motion to Dismiss for Lack of Jurisdiction. Defendant Major Joseph Curry is dismissed from this action without prejudice. Signed by Honorable Donald C Coggins, Jr on 8/6/2018.(cwhi, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
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Plaintiff,
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v.
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Major Joseph Curry, Capt. Carol Scott, Ofc.
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Marie Smith,
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Defendants. )
______________________________________
Timothy Wayne Foster,

C/A No. 9:17-cv-2975-DCC

ORDER

This matter is before the Court on Plaintiff’s Complaint alleging violations of civil
rights pursuant to 42 U.S.C. § 1983. ECF No. 1. Defendant Major Joseph Curry filed a
Motion to Dismiss for lack of jurisdiction. ECF No. 28. A Roseboro order was entered by
the Court and mailed to Plaintiff, advising Plaintiff of the importance of a dispositive motion
and the need for Plaintiff to file an adequate response. ECF No. 30. Plaintiff filed two
Responses in Opposition to the Motion to Dismiss. ECF Nos. 38, 39.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), (D.S.C.),
this matter was referred to United States Magistrate Judge Bristow Marchant for pre-trial
proceedings and a Report and Recommendation (“Report”). On July 12, 2018, the
Magistrate Judge issued a Report recommending that Defendant Curry’s Motion to Dismiss
be granted. ECF No. 41. The Magistrate Judge advised Plaintiff of the procedures and
requirements for filing objections to the Report and the serious consequences if he failed
to do so. Plaintiff has filed no objections, and the time to do so has passed.

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 the Magistrate Judge or recommit
the matter to the Magistrate Judge with instructions. See U.S.C. § 636(b). The Court will
review 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 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 considering the record in this case, the applicable law, and the Report of the
Magistrate Judge, the Court finds no clear error and agrees with the Report’s
recommendation that Defendant Curry’s Motion to Dismiss be granted. Accordingly, the
Court adopts the Report by reference in this Order. The Motion to Dismiss [28] is
GRANTED and Defendant Major Joseph Curry is dismissed from this action without
prejudice.
IT IS SO ORDERED.
s/ Donald C. Coggins, Jr.
United States District Judge
August 6, 2018
Spartanburg, South Carolina

NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and 4
of the Federal Rules of Appellate Procedure.