United States District Court, D. South Carolina, Rock Hill Division
ORDER AND OPINION
Roy Lee Smith (“Plaintiff”), proceeding pro
se, filed this action (ECF No. 11) alleging a violation
of his civil rights pursuant to 42 U.S.C. § 1983 and a
violation of his rights under the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12101, et
accordance with 28 U.S.C. § 636(b)(1) and Local Civil
Rule 73.02 for the District of South Carolina, the matter was
referred to United States Magistrate Judge Paige J. Gossett
for pretrial handling. On October 1, 2015, the Magistrate
Judge issued a Report and Recommendation
(“Report”) (ECF No. 19) recommending that
Plaintiff's Amended Complaint (ECF No. 11) should be
summarily dismissed without prejudice and without issuance
and service of process. This review considers Plaintiff's
Objections to the Report (“Objections”) (ECF No.
22) filed October 16, 2015. For the reasons set forth herein,
the court ACCEPTS the Magistrate Judge's Report, and
summarily DISMISSES Plaintiff's Amended Complaint without
prejudice and without issuance and service of process.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
court concludes upon its own careful review of the record
that the factual and procedural summation in the Magistrate
Judge's Report (ECF No. 19) is accurate, which the court
incorporates herein without a recitation.
LEGAL STANDARD AND ANALYSIS
Magistrate Judge's Report is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the
District of South Carolina. The Magistrate Judge makes only a
recommendation to this court. The recommendation has no
presumptive weight. The responsibility to make a final
determination remains with this court. See Matthews v.
Weber, 423 U.S. 261, 270-71 (1976). This court is
charged with making a de novo determination of those
portions of the Report to which specific objections are made,
and the court may accept, reject, or modify, in whole or in
part, the Magistrate Judge's recommendation, or recommit
the matter with instructions. See 28 U.S.C. §
to a Report must specifically identify portions of the Report
and the basis for those objections. Fed.R.Civ.P. 72(b).
“[I]n the absence of a timely filed objection, a
district court need not conduct a de novo review,
but instead 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, 316 (4th Cir. 2005)
(quoting Fed.R.Civ.P. 72 advisory committee's note).
Failure to timely file specific written objections to a
Report will result in a waiver of the right to appeal from an
order from the court based upon the Report. 28 U.S.C. §
636(b)(1); Thomas v. Arn, 474 U.S. 140, 155 (1985);
Wright v. Collins, 766 F.2d 841 (4th Cir. 1985);
United States v. Schronce, 727 F.2d 91, 94 (4th Cir.
1984). If a party fails to properly object because the
objections lack the requisite specificity, then de
novo review by the court is not required.
Plaintiff is a pro se litigant, the court is
required to liberally construe his arguments. Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even
liberally construed, Plaintiff's Objections fail to
address the deficiencies pointed out by the Magistrate
Judge's Report, and Plaintiff fails to explain why the
Magistrate Judge's reasoning was incorrect. First, the
Magistrate Judge concluded that Plaintiff was unable to meet
the state action requirement for his § 1983 and his
First Amendment claims against both Defendants, and Plaintiff
failed to address these conclusions in his Objections.
Additionally, in analyzing Plaintiff's First Amendment
free-speech and freedom-of-the-press claims, the Magistrate
Judge concluded that Plaintiff failed to state a plausible
First Amendment Claim, and Plaintiff failed to address these
conclusions in his Objections. Second, the Magistrate Judge
concluded that Plaintiff failed to argue a violation of his
rights under the ADA because he did not indicate that he
sought employment by, was employed by, or was denied
reasonable public accommodations or readily accessible
services by Defendants. Again, Plaintiff did not address
these conclusions in his Objections. Finally, the Magistrate
Judge recommended that the court decline to exercise
supplemental jurisdiction since no federal claims remain in
the case, and Plaintiff did not address this recommendation
in his Objections. In conclusion, the court finds that the
Report provided an accurate summary of the facts and law, it
does not contain clear error, and that Plaintiff has waived
appellate review by only lodging general objections. See
Wright, 766 F.2d at 845-46; Thomas, 474 U.S. at
on the aforementioned reasons and a thorough review of the
Report of the Magistrate Judge and the record in this case,
the court ACCEPTS the Report of the Magistrate Judge (ECF No.
19), and SUMMARILY DISMISSES Plaintiff's Amended