Opinion
C/A No. 3:05-0887-RBH.
November 29, 2005
ORDER
Plaintiff, proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983 alleging that he is being denied the right to receive an audiotape of his trial for purposes of his post-conviction relief proceeding. Plaintiff is an inmate of the South Carolina Department of Corrections ("SCDC") currently confined at Wateree River Correctional Institution.
In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02 this matter comes before the Court with the Report and Recommendation of United States Magistrate Joseph R. McCrorey filed March 29, 2005. Based on his review of the record, the Magistrate Judge concluded that the case be dismissed without prejudice on the basis that Federal Courts are not authorized to interfere with a State's ongoing proceedings without a showing of extraordinary circumstances under the doctrine enunciated by the United States Supreme Court in Younger v. Harris, 401 U.S. 37 (1971).
The Magistrate Judge makes only a recommendation to the Court, to which any party may file written objections. The Court is not bound by the recommendation of the Magistrate Judge but, instead, retains responsibility for the final determination. Mathews v. Weber, 423 U.S. 261 (1976). The Court is required to make a de novo determination of those portions of the Report or specified findings or recommendation as to which an objection is made. However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the Magistrate Judge as to those portions of the Report and Recommendation to which no objections are addressed. While the level of scrutiny entailed by the Court's review of the Report thus depends on whether or not objections have been filed, in either case the Court is free, after review, to accept, reject, or modify any of the Magistrate Judge's findings or recommendations. 28 U.S.C. § 636(b)(1).
Plaintiff filed objections on April 11, 2005. He contends in his objections that the defendants have "knowingly and wilfully omitted and added events in the transcript that are not on the audiotapes". He alleged in his Complaint that his PCR action is pending and he requested injunctive relief "preventing the Defendants from prohibiting these tapes for use in (the) case."
The Court has reviewed the plaintiff's objections and finds that the Magistrate Judge correctly found that Federal Courts should abstain from becoming involved in constitutional challenges to ongoing State judicial proceedings. See Cinema Blue of Charlotte, Inc., v. Gilchrist, 887 F.2d 49 (4th Cir. 1989). see also Jones v. Superintendent, Va. State Farm, 460 F.2d 150 (4th Cir. 1972), holding that the State is not always required to provide an indigent prisoner with a free transcript. Accordingly, the Court finds the plaintiff's objections lack merit and they are hereby overruled.
The Court has reviewed the Report, objections, pleadings, memoranda, and applicable law. The Court adopts the Report and Recommendation and incorporates it herein by reference. Therefore, the complaint is DISMISSED without prejudice and without issuance or service of process. This dismissal shall be deemed a "strike" for purposes of 28 U.S.C. § 1915(g).
IT IS SO ORDERED.