Marshall v. Rushton

Full title: Elijah Marshall, Jr., # 186970, Petitioner, v. Collie Rushton; and…

Court: United States District Court, D. South Carolina, Greenville Division

Date published: Dec 8, 2005

C/A No. 6:05-0345-GRA-WMC (D.S.C. Dec. 8, 2005)

Opinion

C/A No. 6:05-0345-GRA-WMC.

December 8, 2005

ORDER (Written Opinion)

G. ANDERSON JR., District Judge

This matter is before the Court for a review of the magistrate's Report and Recommendation made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(c), D.S.C., and issued on November 9, 2005. Petitioner filed an action pursuant to 28 U.S.C. § 2254 on February 25, 2005. Respondents filed a motion for summary judgment on April 19, 2005. On April 21, 2005, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4^th Cir. 1975), the Petitioner was advised of the summary judgment procedure and the possible consequences if he failed to respond adequately. The Petitioner responded on May 20, 2005. The magistrate recommends granting Respondents' motion for summary judgment and dismissing this action.

Petitioner brings this claim 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. Haines v. Kerner, 404 U.S. 519, 520 (1972).

The magistrate 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." 28 U.S.C. § 636(b)(1). This Court may also "receive further evidence or recommit the matter to the magistrate with instructions." Id.

In the absence of objections to the Report and 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). Objections to the Report and Recommendation have not been filed.

After a review of the magistrate's Report and Recommendation, this Court finds the report is based upon the proper law. Accordingly, the Report and Recommendation is accepted and adopted in its entirety.

IT IS THEREFORE ORDERED that Respondents' motion for summary judgment be GRANTED and this action be DISMISSED.

IT IS SO ORDERED.