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Moses v. Pascoe

United States District Court, D. South Carolina, Orangeburg Division

December 20, 2018

George Napoleon Moses, Plaintiff,
v.
David M. Pascoe, Winnifa B. Clark, and State of South Carolina, Respondent.

          ORDER

          R. Bryan Harwell, United States District Judge

         This matter is before the Court for consideration of Plaintiff's objections to the Report and Recommendation (“R & R”) of United States Magistrate Judge Thomas E. Rogers, III, who recommends summarily dismissing this action with prejudice.[1] See ECF No. 14.

         Standard of Review

         The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge's recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a de novo review of those portions of the R & R to which specific objections are made, and it may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).

         The Court must engage in a de novo review of every portion of the Magistrate Judge's report to which objections have been filed. Id. However, the Court need not conduct a de novo review when a party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error in the [M]agistrate [Judge]'s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court need not give any explanation for adopting the Magistrate Judge's recommendation. Camby v. Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).

         Discussion [2]

         Plaintiff, a state prisoner proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983 alleging he filed an application for DNA testing in state court, which apparently has not yet ruled upon the application.[3] See ECF No. 9 (amended complaint). Plaintiff names three defendants-the State of South Carolina, the Solicitor of the First Judicial Circuit (David Pascoe), and the Orangeburg County Clerk of Court (Winnifa Clark)-and requests that this federal Court order the state court to timely adjudicate the DNA matter. Id. at pp. 1-3, 8. The Magistrate Judge recommends summarily dismissing Plaintiff's amended complaint with prejudice because (1) Younger[4] abstention is appropriate, (2) this Court cannot grant injunctions in state proceedings, (3) this Court cannot issue a writ of mandamus against a state solicitor, and (4) Defendants Pascoe and Clark are immune from suit. R & R at pp. 3-5.

         Although Plaintiff specifically objects to the Magistrate Judge's recommendation regarding Defendants Pascoe and Clark's immunity from suit, he does not specifically object to the other grounds for dismissal summarized above. See Diamond & Camby, supra (stating that absent a specific objection, the Court need only review the R & R for clear error and need not give reasons for adopting it).

         Regardless, the Court has conducted a de novo review and agrees with the Magistrate Judge's disposition. Most significantly, the Court agrees Younger abstention is appropriate because “(1) there is an ongoing state judicial proceeding that began prior to substantial progress in the federal proceeding, (2) that proceeding implicates important, substantial, or vital state interests, and (3) there is an adequate opportunity to raise constitutional challenges within the framework of the state judicial process.” Robinson v. Thomas, 855 F.3d 278, 285 (4th Cir. 2017) (summarizing the criteria for Younger abstention). Plaintiff also has not made a showing of “extraordinary circumstances” justifying federal interference with the state proceedings. See Id. at 286 (“A federal court may disregard Younger's mandate to abstain from interfering with ongoing state proceedings only where ‘extraordinary circumstances' exist that present the possibility of irreparable harm.”). Plaintiff's pleadings as well as publicly available records show his application for DNA testing remains pending in state court; he may pursue his constitutional claims there.

         Conclusion

         For the foregoing reasons, the Court ADOPTS the R & R [ECF No. 14] and DISMISSES this action with prejudice[5] and without issuance and service of process.

         IT IS SO ORDERED.

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