stating that “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.” (citation omitted)
How later courts described this case
- stating that “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.” (citation omitted)
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
David Meyers, ) Case No 5:23-cv-00187-DCC
)
Plaintiff, )
)
v. ) ORDER
)
Chris Beicker, FNU Miller, R. Honeycutt, )
Jeffrey Duncan, Amy Jenkins, Daniel )
Brown, Joshua Sigmon, William Farrish, )
Stephanie Hall, )
)
Defendants. )
________________________________ )
This matter is before the Court on Plaintiff’s affidavit seeking to proceed in forma
pauperis. ECF No. 6. In accordance with 28 U.S.C. § 636(b) and by Order of the
Honorable Martin Reidinger, United States Chief District Judge for the Western District of
North Carolina, this matter was referred to United States Magistrate Judge Kevin F.
McDonald for pre-trial proceedings and a Report and Recommendation (“Report”). On
January 16, 2024, the Magistrate Judge issued a Report recommending that the affidavit
seeking leave to proceed in forma pauperis be denied. ECF No. 8. The Magistrate Judge
advised Plaintiff of the procedures and requirements for filing objections to the Report
and the serious consequences if he failed to do so. Plaintiff has not filed objections to
the Report.1
1 Plaintiff requested an extension of time, which the Court construed as a motion
for extension of time to file objections because Plaintiff has been moved. ECF No. 9. The
Court granted the request and gave Plaintiff until February 5, 2024, to file objections. The
APPLICABLE LAW AND ANALYSIS
The Magistrate Judge makes only a recommendation to this Court. The
recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. See Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination of any portion of the Report of the
Magistrate Judge to which a specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation made by the Magistrate Judge or
recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b).
The Court will review the Report only for clear error in the absence of an objection. See
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating
that “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.” (citation omitted)).
After considering the record in this case, the applicable law, and the Report of the
Magistrate Judge, the Court finds no clear error and adopts the recommendation of the
Magistrate Judge. Plaintiff, an incarcerated person proceeding pro se, has previously
filed at least three cases which qualify as a strike under the Prison Litigation Reform Act,
29 U.S.C. § 1915(g). He therefore cannot proceed in forma pauperis unless he satisfies
Court further directed that the Report be remailed to Plaintiff. A copy of the Report was
returned as undeliverable on February 14, 2024; however, it appears this was the earlier
sent copy (see mailing date on returned envelope). Neither the second copy of the Report
nor the order extending time to file objections has been returned.
the exception for “imminent danger of serious physical injury” provided by the three-
strikes rule. See id.; Torres v. O’Quinn, 612 F.3d 237, 246 (4th Cir. 2010). Plaintiff’s
instant complaint does not contain the requisite “specific fact allegations of ongoing
serious injury, or of a pattern of misconduct evidencing the likelihood of imminent physical
injury.” Johnson v. Warner, 200 F. App’x 270, 272 (4th Cir. 2006) (internal quotation
marks omitted).
Therefore, Plaintiff’s affidavit to proceed in forma pauperis [6] is DENIED. Plaintiff
is directed to pay the full filing fee of $402 within 21 days of the date of this Order. If
Plaintiff chooses not to pay the filing fee by that time, this matter shall be dismissed
without prejudice pursuant to 28 U.S.C. § 1915(g).
IT IS SO ORDERED.
s/ Donald C. Coggins, Jr.
United States District Judge
April 26, 2024
Spartanburg, South Carolina