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Lisenby v. Riley

United States District Court, District of South Carolina

April 9, 2015

Billy Lee Lisenby, Jr., #200273, Plaintiff,
v.
Warden Tim Riley; DHO Turner; Sgt. Connors; Captain Barry Tucker; Lt. Laverne Lavigne; Director William Byars; and Nurse Avinger, Defendants.

ORDER

David C. Norton United States District Judge

The above-referenced case is before this court upon the magistrate judge's recommendation that the complaint be dismissed with prejudice. The magistrate judge further recommended that this case be deemed a “strike” for purposes of the “three strikes” rule pursuant to 28 U.S.C. §1915(g) because of its frivolity and failure to state a plausible claim.

This Court is charged with conducting a de novo review of any portion of the magistrate judge's report to which a specific objection is registered, and may accept, reject, or modify, in whole or in part, the recommendations contained in that report. 28 U.S.C. § 636(b)(1). However, absent prompt objection by a dissatisfied party, it appears that Congress did not intend for the district court to review the factual and legal conclusions of the magistrate judge. Thomas v Arn, 474 U.S. 140 (1985). Additionally, any party who fails to file timely, written objections to the magistrate judge's report pursuant to 28 U.S.C. § 636(b)(1) waives the right to raise those objections at the appellate court level. United States v. Schronce, 727 F.2d 91 (4th Cir. 1984), cert denied, 467 U.S. 1208 (1984).[1] No objections have been filed to the magistrate judge’s report and recommendation. Plaintiff filed a motion to dismiss the case without prejudice on March 30, 2015.

A de novo review of the record indicates that the magistrate judge's report accurately summarizes this case and the applicable law. Accordingly, the magistrate judge’s report and recommendation is AFFIRMED, and the complaint is DISMISSED WITH PREJUDICE .

IT IS FURTHER ORDERED that this case is deemed a “strike” pursuant to 28 U.S.C. §1915(g).

IT IS FURTHER ORDERED that plaintiffs motion to dismiss is deemed MOOT.

AND IT IS SO ORDERED.


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