Hughes v. Ratigan, No. 3:2011cv01279 - Document 16 (D.S.C. 2011)

Court Description: OPINION and ORDER RULING ON REPORT AND RECOMMENDATIONS for 12 Report and Recommendations: This action is dismissed without prejudice and without issuance and service of process. Signed by Honorable Cameron McGowan Currie on 7/11/2011. (cbru, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION James Clarence Hughes, III, ) ) Plaintiff, ) ) v. ) ) Karen Christine Ratigan, Assistant ) Attorney General of South Carolina, ) ) Defendant. ) ___________________________________ ) C/A NO. 3:11-1279-CMC-JRM OPINION and ORDER This matter is before the court on Plaintiff s pro se complaint, filed in this case pursuant to 42 U.S.C. § 1983. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(e), DSC, this matter was referred to United States Magistrate Judge Joseph R. McCrorey for pre-trial proceedings and a Report and Recommendation ( Report ). On June 24, 2011, 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 July 7, 2011. 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 1 the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b). After conducting a de novo review as to objections made, and considering the record, 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 in his objections that he is not seeking any monetary compensation from Defendant Ratigan, but is asking this court to order a hearing . . . to determine [inter alia] if (1) whether or not [sic] Plaintiff s conviction was in violation of the U.S. Constitution and South Carolina Constitution . . . . Obj. at 2 (Dkt. #15, filed July 7, 2011). It is clear from this statement that the relief Plaintiff seeks is not available in a civil rights action under 42 U.S.C. § 1983, but must be sought by means of a petition for writ of habeas corpus under 28 U.S.C. § 2254. Therefore, this action 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 July 11, 2011 2

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