Harris v. Stiriling et al, No. 0:2017cv03322 - Document 16 (D.S.C. 2018)

Court Description: OPINION & ORDER vacating the 12 previous order adopting the Report and Recommendation, finding Harris' objections without merit, adopting the 8 Report and Recommendation, and dismissing the case without prejudice and without issuance and service of process. Signed by Honorable Henry M. Herlong, Jr. on 2/26/2018. (bgoo)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ROCK HILL DIVISION Ras. Stefen Emira Zelon Harris, ) ) Plaintiff, ) ) vs. ) ) Agency Director Bryan P. Stiriling, ) General Counsel David Tararsky, Joetta ) Scarbourough, South Carolina Department ) of Corrections, ) ) Defendants. ) C.A. No. 0:17-3322-HMH-PJG OPINION & ORDER This matter is before the court with the Report and Recommendation of United States Magistrate Judge Paige J. Gossett, made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 of the District of South Carolina.1 Ras. Stefen Emira Zelon Harris (“Harris”), proceeding pro se, alleges a violation of 42 U.S.C. § 1983. In her Report and Recommendation, Magistrate Judge Gossett recommends dismissing this case without prejudice and without issuance and service of process because Harris’ complaint fails to state a cognizable claim for relief. (Report & Recommendation 3-4, ECF No. 8.) Objections to the Report and Recommendation were due by February 12, 2018. After receiving no timely objections and determining that there was “no clear error on the face of the record,” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), the court 1 The recommendation has no presumptive weight, and the responsibility for making a final determination remains with the United States District Court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those portions of the Report and Recommendation to which 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 with instructions. 28 U.S.C. § 636(b)(1). 1 adopted the Report and Recommendation and summarily dismissed Harris’ 42 U.S.C. § 1983 complaint in an order dated February 20, 2018. (Feb. 20, 2018 Order, ECF No. 12.) Harris filed objections to the Report and Recommendation, which he dated February 9, 2018, and were stamped received by the prison mailroom on February 15, 2018. (Objs. 7, Ex. 4 (Envelope), ECF Nos. 15 & 15-4.) In addition, Harris attached a notarized proof of service by mail that is dated February 9, 2018. (Objs. Ex. 2 (Proof of Service by Mail), ECF No. 15-2.) Therefore, out of an abundance of caution and in light of Harris’ pro se status, the court finds that Harris’ objections are timely. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (“A document filed pro se is to be liberally construed . . . .”) (internal quotation marks omitted). Objections to the Report and Recommendation must be specific. Failure to file specific objections constitutes a waiver of a party’s right to further judicial review, including appellate review, if the recommendation is accepted by the district judge. See United States v. Schronce, 727 F.2d 91, 94 & n.4 (4th Cir. 1984). In the absence of specific objections to the Report and Recommendation of the magistrate judge, this court is not required to give any explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Upon review, the court finds that Harris’ objections are non-specific, unrelated to the dispositive portions of the magistrate judge’s Report and Recommendation, or merely restate his claims. Accordingly, after review, the court finds that Harris’ objections are without merit. Therefore, after a thorough review of the magistrate judge’s Report and the record in this case, the court adopts Magistrate Judge Gossett’s Report and Recommendation and incorporates it herein by reference. 2 It is therefore ORDERED that the previous order adopting the Report and Recommendation, dated February 20, 2018, docket number 12, is vacated. It is further ORDERED that the case is dismissed without prejudice and without issuance and service of process. IT IS SO ORDERED. s/Henry M. Herlong, Jr. Senior United States District Judge Greenville, South Carolina February 26, 2018 NOTICE OF RIGHT TO APPEAL The Plaintiff 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. 3

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