United States District Court, D. South Carolina, Orangeburg Division
ORDER AND OPINION
Jeffery Wayne Walker, proceeding pro se and in
forma pauperis, filed an action against Defendants
Sheriff Chuck Wright and Major A. Freeman, alleging
violations of his constitutional rights under 42 U.S.C.
§ 1983. The matter before the court is a review of the
Magistrate Judge's Report and Recommendation
(“Report”) recommending that Plaintiff's
Complaint (ECF No. 1) be dismissed with prejudice for failure
to prosecute. (ECF No. 38.) For the reasons below, the court
ACCEPTS the Report (ECF No. 38) and
GRANTS Defendants' Motion to Dismiss
(ECF No. 29).
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 to which
specific objections are made. See 28 U.S.C. §
636(b)(1); see also Fed. R. Civ. P. 72(b)(3). In the
absence of specific objections to the Magistrate Judge's
Report, the court is not required to give any explanation for
adopting the Report. See Camby v. Davis, 718 F.2d
198, 199 (4th Cir. 1983). Rather, “in 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, 315
(4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory
committee's note). Thus, 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. § 636(b)(1).
court is required to interpret pro se documents
liberally and will hold those documents to a less stringent
standard than those drafted by attorneys. See Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978); see also
Hardin v. United States, C/A No. 7:12-cv-0118-GRA, 2012
WL 3945314, at *1 (D.S.C. Sept. 10, 2012). Additionally,
pro se documents must be construed in a manner,
“no matter how inartfully pleaded, to see whether they
could provide a basis for relief.” Garrett v.
Elko, No. 95-7939, 1997 WL 457667, at *1 (4th Cir. Aug.
12, 1997). Although pro se documents are liberally
construed by federal courts, “[t]he ‘special
judicial solicitude' with which a district court should
view pro se complaints does not transform the court
into an advocate.” Weller v. Dep't of Soc.
Servs. for Balt., 901 F.2d 387, 391 (4th Cir. 1990).
the record shows that Petitioner has failed to file any
objections to the Report issued on September 13, 2019. (ECF
No. 12). Therefore, the court must only review the record to
ensure that there is no clear error. See Diamond,
416 F.3d at 315. Plaintiff filed a Complaint on June 20,
2019. (ECF No. 1.) Defendants filed a Motion to Dismiss,
pursuant to Fed.R.Civ.P. 12(b)(6), on July 12, 2019. (ECF No.
29.) On July 15, 2019, the court issued a Roseboro
order notifying Plaintiff of the importance of responding to
Defendants' motion. (ECF Nos. 31; 38 at 1.) However,
Plaintiff did not respond. On August 21, 2019, the court
requested that Plaintiff indicate whether he intended to
continue with this action. (Id.) Once again,
Plaintiff failed to file a response. As such, the Magistrate
Judge determined that “it appears to the court that
[Plaintiff] does not oppose Defendants' motion and wishes
to abandon this action.” (Id.)
thorough review of the Report and the record in this case,
the court ACCEPTS the Magistrate Judge's
Report and Recommendation (ECF No. 38),
GRANTS Defendants Sheriff Chuck Wright and
Major A. Freeman's Motion to Dismiss for failure to state
a claim upon which relief may be granted (ECF No. 29), and
DISMISSES Plaintiff Jeffery Wayne
Walker's Complaint (ECF No. 1) with prejudice.
governing certificates of appealability provides that:
(c)(2) A certificate of appealability may issue . . . only if
the applicant has made a substantial showing of the denial of
a constitutional right. (c)(3) The certificate of
appealability . . . shall indicate which specific issue or
issues satisfy the showing required by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies this standard
by demonstrating that reasonable jurists would find this
court's assessment of his constitutional claims is
debatable or wrong and that any dispositive procedural ruling
by the district court is likewise debatable. See
Miller-El v. Cockrell, 536 U.S. 322, 336 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In
this case, the legal standard for the issuance of a
certificate of appealability has not been met.