Browning v. Warden Allendale Correctional Institution
Filing
32
ORDER ADOPTING THE REPORT AND RECOMMENDATION, dismissing this action with prejudice pursuant to FRCP 41(b), for 27 Report and Recommendations. Signed by Honorable G Ross Anderson, Jr on March 11, 2009. (kbos)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION
TAVARES BROWNING, #308568, ) ) Petitioner, ) ) v. ) ) WARDEN, ALLENDALE ) CORRECTIONAL INSTITUTION, ) ) Respondent. _)
C/A 3:08-2271-GRA-JRM
This matter comes before the Court for a review of the magistrate's Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Rule 73.02(B)(2)(c), D.S.C., filed on February 13, 2009. The petitioner filed this his § 2254 petition on June 19, 2008. On November 7, 2008 the respondent's moved for summary judgement. On November 13, 2008, the respondent filed an amended motion for summary judgement. As the petitioner is proceeding pro se, the Court issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) on November 10, 2008, advising Petitioner of the importance of a motion for summary judgment and of the need for him to file an adequate response. On January 26, 2009, the magistrate issued a second order allowing the Petitioner an additional fifteen (15) days in which to advise the Court whether he wished to continue in this action. The petitioner again failed to respond. 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. 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 order for objections to be considered by a United States District Judge, the objections must specifically identify the portions of the Report and Recommendation to which the party objects and the basis for the objections. FED. R. CIV. P. 72(b); see United States v. Schronce, 727 F.2d 91,94 n.4 (4th Cir. 1984); Wright v. Collins, 766 F.2d 841, 845-47 nn.1-3 (4th Cir. 1985). "Courts have . . . held de novo review to be unnecessary in . . . situations when a party makes general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendation." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Furthermore, in the absence of specific objections to the Report and Recommendation,
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this Court is not required to give any explanation for adopting the recommendation. Camby v. Davis, 718 F.2d 198 (4th Cir. 1983). The petitioner has not responded. After reviewing the record, and the Report and Recommendation this Court finds that the magistrate applied sound legal principles to the facts of this case. Therefore, this Court adopts the magistrate's Report and Recommendation in its entirety. Wherefore, it is hereby ORDERED that this action be dismissed with prejudice pursuant to Fed. R. Civ. Proc. 41(b). IT IS SO ORDERED.
Anderson, South Carolina March 11, 2009
NOTICE OF RIGHT TO APPEAL Petitioner is hereby notified that he has 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. Failure to meet this deadline, as modified within Rule 4, will waive the right to appeal.
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