Sims v. Captin NFN Kitchen

Full title: Avery Sims, #288655, Plaintiff, v. Captin NFN Kitchen and MCO S…

Court: United States District Court, D. South Carolina, Anderson/Greenwood Division

Date published: Feb 10, 2009

C/A No.: 8:08-cv-1049-GRA-BHH (D.S.C. Feb. 10, 2009)

Opinion

C/A No.: 8:08-cv-1049-GRA-BHH.

February 10, 2009

ORDER (Written Opinion)

G. ANDERSON JR., District Judge

This matter comes before the Court to review the magistrate's Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(d), D.S.C., filed on January 13, 2009. Plaintiff originally filed a complaint pursuant to 42 U.S.C. § 1983. The magistrate now recommends that this Court grant the defendant's motion for Summary Judgement, deny the plaintiff's motion for Summary Judgment, and dismiss the plaintiff's complaint, with prejudice. For the reasons stated herein, this Court adopts the magistrate's recommendation.

Plaintiff 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. See 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. See Boag v. MacDougall, 454 U.S. 364, 365 (1982).

The magistrate makes only a recommendation to this Court. The recommendation has no presumptive weight, and responsibility for making 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 specific 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 (4th. Cir. 1983). The plaintiff has not filed any objections.

After a review of the magistrate's Report and Recommendation, applicable case law, and the record, this Court finds that the magistrate applied sound legal principles to the facts of this case. Therefore, this Court adopts the Report and Recommendation in its entirety.

IT IS THEREFORE ORDERED THAT the defendants motion for Summary Judgment be GRANTED, the plaintiff's motion for Summary Judgment be DENIED, and the plaintiff's complaint be DISMISSED, with prejudice.

IT IS SO ORDERED.

NOTICE OF RIGHT TO APPEAL

Pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure, Plaintiff has the right to appeal this Order within thirty (30) days from the date of its entry. Failure to meet this deadline, as modified by Rule 4 of the Federal Rules of Appellate Procedure, will waive the right to appeal.