Wise v. Kendall ( 2022 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA GREENVILLE DIVISION Cederick Wise, ) Case No.: 6:21-cv-03477-JD-KFM ) Plaintiff, ) ) vs. ) ) OPINION & ORDER Brian Kendall, Christopher Poindexter, ) Travis Guest, NyKeemah Fields, Albert ) Mackie, Mr. Gore, John Doe 2, ) ) Defendants. ) ) ) This matter is before the Court with the Report and Recommendation of United States Magistrate Kevin F. McDonald (“Report and Recommendation”), made in accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(d) of the District of South Carolina.1 Plaintiff Cederick Wise (“Wise” or “Plaintiff”), proceeding pro se and in forma pauperis, brought this action alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. (DE 1.) Plaintiff’s Complaint was filed on October 22, 2021. (DE 1.) The Magistrate issued an Order on December 17, 2021, informing Plaintiff that his complaint was subject to dismissal as drafted and providing him with time to file an amended complaint to correct the deficiencies noted in the Order. (DE 12.) Plaintiff was informed that if he failed to file an amended complaint or cure the deficiencies outlined in the Order, his claims would be dismissed with prejudice. (DE 12, pp. 9-10.) Plaintiff has failed to file an amended complaint within the time provided. 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). The Report and Recommendation was issued on January 21, 2022, recommending that Plaintiff’s case be dismissed because Plaintiff failed to file an amended complaint within the time provided. (DE 16.) Plaintiff filed no objections to the Report and Recommendation. In the absence of objections to the Report and Recommendation, 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). The Court must “only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). Upon review of the Report and Recommendation and the record in this case, the Court adopts the Report and Recommendation and incorporates it herein by reference. It is, therefore, ORDERED that this action is dismissed with prejudice and without leave for further amendment. It is further ordered that this action be designated as a “strike” pursuant to 28 U.S.C. § 1915(g). IT IS SO ORDERED. s/Joseph Dawson, III Joseph Dawson, III United States District Judge March 16, 2022 Greenville, South Carolina NOTICE OF RIGHT TO APPEAL 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.