United States District Court, D. South Carolina
matter is before the court for review of the Magistrate
Judge's Report and Recommendation (“Report”)
filed on September 12, 2018. (ECF No. 10.) The Report
addresses Plaintiff Kenneth Syncere Rivera's
(“Plaintiff”) suit under 42 U.S.C. § 1983
and recommends that the court deny Plaintiff's Motion for
Leave to Proceed in forma pauperis. (ECF No. 7.) For the
reasons stated herein, the court ACCEPTS the
Report and DENIES Plaintiff's Motion.
FACTUAL AND PROCEDURAL BACKGROUND
Report sets forth the relevant facts and legal standards
which this court incorporates herein without a full
recitation. (ECF No. 10.) As brief background, on August 17,
2018, Plaintiff, proceeding pro se, filed his
Complaint, alleging constitutional violations pursuant to 42
U.S.C. § 1983. (ECF No. 1.) Specifically, in his
Complaint, Plaintiff alleges that the prisoners at Broad
River Correctional Institution are being held in poor
conditions during the alleged state lock down. (Id.
at 1.) Plaintiff asserts that prisoners are not able to clean
their cells, access the law library, receive rehabilitation,
receive medical care, receive mental health evaluations,
engage in recreation, access the canteen, or send their mail.
(Id. at 1-2.) He also alleges the facilities are
being kept in poor condition. (Id. at 1.) His
allegation regarding denial of medical care for his migraine
pain is already present in another action pursuant to 42
U.S.C. § 1983, which remains pending before the court,
wherein he was granted leave to proceed in forma
pauperis. (See Rivera v. Stirling, No.
8:17-cv-2087.) In terms of relief, Plaintiff desires $20,
000.00 in punitive damages and $20, 000.00 in compensatory
damages. (Id. at 5.)
September 10, 2018, Plaintiff filed a pro se Motion
for Leave to Proceed in forma pauperis. (ECF No. 7.)
Plaintiff has not paid the filing fee. On September 12, 2018,
the Magistrate Judge issued a Report. (ECF No. 10.) The
Report reasoned that Plaintiff's Motion should be denied
because he is subject to the three strikes rule of the Prison
Litigation Reform Act. (Id. at 2.) This rule bars
prisoners who have filed prior frivolous litigation in a
federal court from pursing certain types of federal civil
litigation without prepayment of the filing fee.
(Id.) The Report found that since Plaintiff does not
fall under exception for imminent danger of serious physical
injury, he cannot proceed in forma pauperis and must
pay the filing fee in full to proceed with the Complaint.
(Id. at 3.) For these reasons, the Report ultimately
recommended that the court deny Plaintiff's Motion for
Leave to Proceed in forma pauperis and that Plaintiff be
given twenty-one (21) days from the date this court rules on
the Report to pay the filing fee of four hundred ($400.00)
dollars. The Report recommended that the Office of the Clerk
of Court withhold entry of judgment until such time expires
and that the Clerk enter the required final judgment at the
close of the 21-day period. (Id. at 4.)
STANDARD OF REVIEW
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 only makes a
recommendation to this court, and the recommendation has no
presumptive weight. See Mathews v. Weber,
423 U.S. 261, 270-71 (1976). The responsibility to make a
final determination remains with the court. Id. at
271. As such, the court is charged with making de
novo determinations of those portions of the Report and
Recommendation to which specific objections are made.
See 28 U.S.C. § 636(b)(1); see also
Fed. R. Civ. P. 72(b)(3). Thus, the court may accept, reject,
or modify, in whole or in part, the Magistrate Judge's
recommendation or recommit the matter with instructions. 28
U.S.C. § 636(b)(1).
parties were apprised of their opportunity to file objections
to the Report on September 12, 2018. (ECF No. 10 at 5.)
Objections to the Report were due by September 26, 2018.
(Id.) However, objections were due by September 29,
2018, if a party was served by mail or otherwise allowed
under Fed.R.Civ.P. 6 or Fed. R. Crim. P. 45. (Id.)
Neither party filed an objection to the Report.
absence of specific objections to the Magistrate Judge's
Report, this court is not required to provide an explanation
for adopting the recommendation. See Camby v. Davis,
718 F.2d 198, 199 (4th Cir. 1983). Instead, 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) (quoting Fed.R.Civ.P. 72
advisory committee's note). Furthermore, failure to file
specific written objections to the Report results in a
party's waiver of the right to appeal from the judgment
of the District Court based upon such recommendation. 28
U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140
(1985); Wright v. Collins, 766 F.2d 841 (4th Cir.
1985); United States v. Schronce, 727 F.2d 91 (4th
Cir. 1984). After a thorough and careful review of the
record, the court finds the Magistrate Judge's Report
provides an accurate summary of the facts and law in the
instant case. (ECF No. 10.) Since no specific objections were
filed by either party, the court adopts the Report herein.
Camby, 718 F.2d at 199.
thorough review of the Report and the record in this case,
the court ACCEPTS the Magistrate Judge's
Report and Recommendation (ECF No. 10) and incorporates it
herein. Therefore, the court DENIES
Plaintiffs Motion for Leave to Proceed in forma pauperis (ECF
No. 7), INSTRUCTS Plaintiff that his action
will be dismissed if he fails to pay the $400.00 filing fee
on or by November 22, 2018, and ORDERS the
Office of the Clerk of Court to withhold entry of judgment
until the close of the 21-day period for payment of the