Smalls v. Wolf

IN THE UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION Demetrius Jarod Smalls, # 286806, Case No. 2:25-32-RMG Plaintiff, v. ORDER David Wolf, et al.

Defendants.

This matter is before the Court on the Report and Recommendation (“R & R”) of the Magistrate Judge recommending the denial of Plaintiff’s motion for leave to proceed in forma pauperis (Dkt. No. 10) and the dismissal of this action without prejudice if Plaintiff fails to pay the filing fee within 21 days of the District Court’s order. (Dkt. No. 11). Plaintiff was advised that he had 14 days from the date of the R & R to file any objections, which, with three additional days for mailing, required the filing of objections on or before August 17, 2025. (Dkt. No. 11 at 7). No objections have been received by the Court.

I. Background Plaintiff, who is serving a 25 year sentence in the South Carolina Department of Corrections for armed robbery, assault and battery with attempt to kill, and kidnapping, has filed civil actions in this Court, most of which have been summarily dismissed. The Court has previously determined that Plaintiff is subject to the “three strikes rule” and may not proceed in forma pauperis absent a showing of imminent harm. State of South Carolina v. Smalls, 2025 WL 714227 (D.S.C. January 17, 2025), adopted 2025 WL 713824 (D.S.C. March 5, 2025).

The Magistrate Judge recommended that Plaintiff’s motion to proceed in forma pauperis be denied because of the previous “three strikes” finding and the absence of any claim in his complaint of imminent harm. (Dkt. No. 11). The Magistrate Judge further recommended that this action be dismissed without prejudice 21 days after the District Court issues its order in this matter if Plaintiff fails to pay the required filing fee. (Id.).

II. Legal Standards A. Magistrate’s Report and Recommendation The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility for making a final determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making a de novo determination only of those portions of the Report to which specific objections are made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

In the absence of specific objections, the Court reviews the Report for clear error. 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.’”) (quoting Fed. R. Civ. P. 72 advisory committee's note).

B. Pro Se Pleadings This Court liberally construes complaints filed by pro se litigants to allow the development of a potentially meritorious case. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a viable federal claim, nor can the Court assume the existence of a genuine issue of material fact where none exists. See Weller v. Dep't of Social Services, 901 F.2d 387 (4th Cir. 1990).

III. Discussion The Court finds that the Magistrate Judge ably summarized the factual and legal issues in this matter and correctly concluded that Plaintiff should not be allowed to proceed in forma pauperis because of the previous judicial determination that he was subject to the “three strikes rule.” The Court further agrees that should Plaintiff not submit a filing fee within 21 days of this order his case should be dismissed without prejudice.

Conclusion For the reasons set forth above, the Court ADOPTS the R&R (Dkt. No. 11) as the Order of the Court. Plaintiff’s motion to proceed in forma pauperis is DENIED. If Plaintiff does not submit the $405.00 filing fee within 21 days of this order, his case will be DISMISSED WITHOUT PREJUDICE.

AND IT IS SO ORDERED.

s/ Richard Mark Gergel Richard Mark Gergel United States District Judge August 24, 2025 Charleston, South Carolina