Opinion
Civil Action No.: 6:12-730-MGL
08-02-2012
Cedric Wise, Plaintiff, v. Michael McCall, et al., Defendants.
ORDER AND OPINION
Plaintiff Cedric Wise is an inmate in custody at Perry Correctional Institution in Pelzer, South Carolina. (ECF No. 1.) On March 15, 2012, Plaintiff proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983. Id. In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 D.S.C., this matter was referred to United States Magistrate Judge Kevin F. McDonald for pretrial handling.
Plaintiff filed a motion to dismiss complaint without prejudice on July 2, 2012. ECF No. 33.) The Defendants, in their response, stated that they have no objection to the plaintiff's motion. (ECF No. 34.) Thus, Magistrate Judge McDonald recommended that the plaintiff's motion be granted and this action be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2). (ECF No. 42.)
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 this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1). The court may also receive further evidence or recommit the matter to the Magistrate Judge with instructions. Id. The court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objections are made.
After a careful review of the record, the applicable law, and the Report and Recommendation, the court finds the Magistrate Judge's recommendation to be proper. Accordingly, the Report and Recommendation is incorporated herein by reference and this action is DISMISSED without prejudice.
CERTIFICATE OF APPEALABILITY
The law governing certificates of appealability provides that:
(c) (2) A certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.28 U.S.C. § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable jurists would find this court's assessment of his constitutional claims is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir.2001). In this case, the legal standard for the issuance of a certificate of appealability has not been met.
(c) (3) The certificate of appealability ... shall indicate which specific issue or issues satisfy the showing required by paragraph (2).
IT IS SO ORDERED.
Mary G. Lewis
United States District Judge
Spartanburg, South Carolina
August 2, 2012.