Taylor v. Gardner et al, No. 8:2009cv02605 - Document 13 (D.S.C. 2009)

Court Description: OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS 9 ; This matter is dismissed without prejudice and without issuance and service of process. Order signed by Honorable Cameron McGowan Currie on 12/4/09. (ncha, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA GREENWOOD DIVISION Henry Taylor, # 439, 444, ) ) Plaintiff, ) ) v. ) ) Wesley J. Gardner, Investigator; ) County of Sumter, Third Judicial Circuit, ) ) Defendants. ) ___________________________________ ) C/A NO. 8:09-2605-CMC-BHH OPINION and ORDER This matter is before the court on Plaintiff s pro se complaint, filed in this court pursuant to 42 U.S.C. § 1983. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(d), DSC, this matter was referred to United States Magistrate Judge Bruce Howe Hendricks for pre-trial proceedings and a Report and Recommendation ( Report ). On November 18, 2009, the Magistrate Judge issued a Report recommending that the complaint be dismissed without prejudice and without issuance and service of process. The Magistrate Judge advised Plaintiff of the procedures and requirements for filing objections to the Report and the serious consequences if he failed to do so. Plaintiff filed objections to the Report on November 30, 2009. The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of any portion of the Report of the Magistrate Judge to which a specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b). After reviewing the record of this matter, the applicable law, the Report and Recommendation of the Magistrate Judge, and Plaintiff s objections, the court agrees with the conclusions of the Magistrate Judge. Accordingly, the court adopts and incorporates the Report and Recommendation by reference in this Order. Plaintiff contends that his complaint should be served, maintaining that his constitutional rights were indeed violated and complaining of alleged delay and infirmities in the state s prosecution. Objections at 1, 2 (Dkt. # 11, filed Nov. 30, 2009). However, these conclusory assertions and disagreements with the manner in which the state s criminal prosecution may be proceeding are insufficient to overcome the legal infirmities of Plaintiff s complaint. Therefore, Plaintiff s objections are without merit. This matter is dismissed without prejudice and without issuance and service of process. IT IS SO ORDERED. s/ Cameron McGowan Currie CAMERON MCGOWAN CURRIE UNITED STATES DISTRICT JUDGE Columbia, South Carolina December 4, 2009 C:\Documents and Settings\nac60\Desktop\09-2605 Order.wpd 2

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