Hubbard v. Stirling ( 2022 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ANDERSON/GREENWOOD DIVISION Deborah Hubbard, ) C/A No. 8:21-cv-684-SAL-JDA ) Plaintiff, ) ) OPINION AND ORDER v. ) ) Brian Stirling, Clarissa Brown Finley, ) John McCree, David Martinez, Marilyn ) Griffin, Crystal Jones, ) ) Defendants. ) ___________________________________ ) This matter is before the court for review of the Report and Recommendation of United States Magistrate Judge Jacquelyn D. Austin (the “Report”). [ECF No. 23.] In the Report, the Magistrate Judge recommends the court deny Plaintiff’s motion to proceed in forma pauperis and provide Plaintiff twenty-one days to pay the filing fee. Id. at 7. If Plaintiff pays the filing fee during that period, the Magistrate Judge recommends the action be referred back to her for further review. Id. However, if Plaintiff fails to pay the filing fee, the Report recommends the court dismiss Plaintiff’s complaint without prejudice under the three strikes rule of 28 U.S.C. § 1915(g). Id. Plaintiff has not filed objections to the Report, and the time for doing so has expired. 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 this court. See Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The court is charged with making a de novo determination of only those portions of the Report that have been specifically objected to, and the court may accept, reject, or modify the Report, in whole or in part. 28 U.S.C. § 636(b)(1). In the absence of objections, the court is not required to provide an explanation for adopting the Report and 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) (citing Fed. R. Civ. P. 72 advisory committee’s note). After a thorough review of the Report, the applicable law, and the record of this case in accordance with the above standard, the court finds no clear error, adopts the Report, ECF No. 23, and incorporates the Report by reference herein. As a result, Plaintiff’s motion to proceed in forma pauperis, ECF No. 17, is DENIED. Plaintiff is granted twenty-one days from the date of this Order to pay the filing fee of $402, and the Clerk of Court is to withhold entry of judgment until such time for payment expires. If Plaintiff timely pays the filing fee, the Clerk is directed to refer this matter back to the Magistrate Judge for further review. If Plaintiff fails to timely pay the filing fee, the Clerk is directed to dismiss the matter without prejudice pursuant to 28 U.S.C. § 1915(g) at the close of the 21-day period. IT IS SO ORDERED. /s/Sherri A. Lydon October 4, 2022 Sherri A. Lydon Columbia, South Carolina United States District Judge