Johnson v. Hagan

Full title: JAMES GRADY-LEE JOHNSON, a/k/a James G. Johnson, Plaintiff, v. GEORGE T…

Court: United States District Court, D. South Carolina, Rock Hill Division

Date published: May 14, 2007

CIVIL ACTION NO. 0:07-0908-HFF-BM (D.S.C. May. 14, 2007)

Opinion

CIVIL ACTION NO. 0:07-0908-HFF-BM.

May 14, 2007

ORDER

HENRY FLOYD, District Judge

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 that 1) the action be dismissed, without prejudice, and without issuance and service of process; and 2) the dismissal be deemed a strike pursuant to 28 U.S.C. § 1915(g). The Report is 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 April 20, 2007. Plaintiff failed to file any objections. In the absence of objections, the Court is not required to give any explanation for adopting the recommendation. Camby v. Davis, 718 F.2d 198, 199 (4^th Cir. 1983). Moreover, a failure to object waives appellate review. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985).

"At this stage of the litigation, we must accept [Plaintiff]'s allegations as true. A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Hishon v. King Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Because the Court finds that to be the situation presented here, it will enter judgment accordingly.

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 to the extent that it does not contradict this Order and incorporates it herein. Therefore, it is the judgment of this Court that 1) the action be DISMISSED, without prejudice, and without issuance and service of process; and 2) the dismissal be deemed a STRIKE pursuant to 28 U.S.C. § 1915(g).

IT IS SO ORDERED.

NOTICE OF RIGHT TO APPEAL

Plaintiff is hereby notified of the right to appeal this Order within thirty (30) days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.