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Hondl v. State of North Dakota County of Stark

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

December 20, 2018

Gene Vincent Hondl, Petitioner,
v.
State of North Dakota County of Stark, Respondent.

          ORDER

          R. Bryan Harwell, United States District Judge

         This matter is before the Court for review of the Report and Recommendation (“R & R”) of United States Magistrate Judge Kaymani D. West, who recommends summarily dismissing this action without prejudice.[1] See ECF No. 12.

         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]

         Petitioner, a federal prisoner proceeding pro se and in forma pauperis, commenced this action by filing a “Motion for Writ of Mandamus” against a North Dakota county asking the Court to order return of certain forfeited personal property. See ECF No. 1. The Magistrate Judge entered an R & R recommending summary dismissal because this Court lacks subject matter jurisdiction to issue the requested writ of mandamus. R & R at pp. 2-4. Separately, the Magistrate Judge issued an order granting Petitioner's motion for leave to proceed in forma pauperis and requiring him to pay the $350 filing fee in accordance with 28 U.S.C. §§ 1914 and 1915. See ECF No. 10.

         Petitioner does not specifically object to the proposed findings and recommendations in the Magistrate Judge's R & R. The Court discerns no error in the R & R and will therefore adopt it. See Diamond, 416 F.3d at 315; Camby, 718 F.2d at 199-200.

         However, within the time for filing objections, Petitioner filed a letter asking if he can voluntarily withdraw this action to avoid the $350 filing fee that he has incurred. See ECF No. 15. Although prisoners such as Petitioner may commence a civil action without prepaying the filing fee and thereby proceed in forma pauperis, see 28 U.S.C. § 1915(a)(1), the Prison Litigation Reform Act of 1995 (“PLRA”) provides that “if a prisoner brings a civil action . . . in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee.” 28 U.S.C. § 1915(b)(1) (emphasis added); see also Bruce v. Samuels, 136 S.Ct. 627, 630 (2016) (explaining that in enacting the PLRA, “Congress required prisoners to pay filing fees for the suits or appeals they launch”); see, e.g., Fleming v. Reynolds, No. 2:07-cv-01212-MBS, 2007 WL 2156622, at *1 (D.S.C. July 26, 2007) (“To the extent the request is properly before the court, the court is without authority to waive payment of the filing fee.”). Thus, Petitioner still must pay the filing fee.[3]

         Conclusion

         For the foregoing reasons, the Court ADOPTS the R & R [ECF No. 12] and DISMISSES this action without prejudice[4] and without issuance and service of process.[5]

         IT IS SO ORDERED.

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