Avila v. Edgefield Federal Prison et al
Filing
72
OPINION AND ORDER RULING ON REPORT AND RECOMMENDATIONS adopting 69 Report and Recommendations, granting Defendants' motion to dismiss and dismissing Avila's complaint without prejudice, re 43 Motion to Dismiss; denying as moot 42 Motion to Amend/Correct and 61 Motion to Amend/Correct. Signed by Honorable Henry M Herlong, Jr on 7/21/2011. (jpet, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Martin Avila, #08508-027,
Plaintiff,
vs.
Edgefield Federal Prison;
Mrs. Mary Mitchell, Warden;
Mr. Acosta, Assist. Warden;
Mr. Collie, Capt.;
Mr. Clark, Lt.;
Mr. Hollet, Lt.;
Mr. Neal, C Unit Manager;
Mr. H. Koger, III, B Unit Manager;
Mrs. S. Cheek, B Case Manager;
Mr. J. Bryant, B Counselor;
Mr. Johnson, C Counselor;
Mr. Santiago, SIS;
Mr. Roper, Unit Officer;
Mr. Upson, Unit Officer;
Mr. Flores, Unit Offficer;
Mr. Kate, Unit Officer;
Mrs. Martin, Unit Officer;
Mr. Green, Unit Officer;
Mr. Evans, Unit Officer;
Mrs. Jackson, Unit Officer;
Mr. Fallen, Assist. Warden;
Mr. S. Smith, Recreation;
Mr. T. Nixon;
Mr. J. Sullivan;
Mr. Spark;
Mrs. Lathrop;
Mr. L. Morgan, Unit Officer;
Mr. Wilson, Unit Officer;
Mr. Burkett, B;
Mr. Burkett;
Mrs. V. Kepner, Education,
Defendants.
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C.A. No. 0:10-2370-HMH-PJG
OPINION & ORDER
1
This matter is before the court with the Report and Recommendation of United States
Magistrate Judge Paige J. Gossett, made in accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02 of the District of South Carolina.1 Martin Avila (“Avila”), a federal
prisoner proceeding pro se, filed this action pursuant to Bivens v. Six Unknown Named Agents
of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), claiming deprivations of his Fifth,
Eighth, and Fourteenth Amendment rights. Defendants moved to dismiss Avila’s complaint
pursuant to Rule12(b)(6) of the Federal Rules of Civil Procedure. Magistrate Judge Gossett
recommends granting Defendants’ motion. Avila timely filed objections to the magistrate
judge’s Report on July 15, 2011.2
Objections to the Report and Recommendation must be specific. Failure to file specific
objections constitutes a waiver of a party’s right to further judicial review, including appellate
review, if the recommendation is accepted by the district judge. See United States v. Schronce,
727 F.2d 91, 94 & n.4 (4th Cir. 1984). In the absence of specific objections to the Report and
Recommendation of the magistrate judge, this court is not required to give any explanation for
adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
Upon review, the court finds that Avila’s objections are non-specific, unrelated to the
dispositive portions of the magistrate judge’s Report and Recommendation, or merely restate his
1
The recommendation has no presumptive weight, and the responsibility for making a final
determination remains with the United States District Court. See Mathews v. Weber, 423
U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of
those portions of the Report and Recommendation to which 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 with instructions. 28 U.S.C. § 636(b)(1).
2
See Houston v. Lack, 487 U.S. 266 (1988).
2
claims. In his objections, Avila concedes that dismissal is appropriate because he has failed to
state a claim for which relief can be granted, and he requests an opportunity to amend his
deficient pleading pursuant to Rule 15 of the Federal Rules of Civil Procedure. (Objections 2, 4,
6-7.) Since the commencement of his Bivens action, however, Avila has filed two motions to
amend his complaint. Magistrate Judge Gossett found that the new factual allegations raised in
both of the motions failed to cure the deficiencies contained in his original complaint. (Report
& Recommendation 8-11). In his most recent request to amend, Avila neither furnishes an
amended complaint nor provides any new factual allegations sufficient to remedy his deficient
pleading. The court, therefore, denies his request to amend. See Edwards v. City of Goldsboro,
178 F.3d 231, 242 (4th Cir. 1999) (noting that a court should deny a plaintiff leave to amend
when the amendment would be futile).
After a thorough review of the Report and Recommendation and the record in this case,
the court adopts Magistrate Judge Gossett’s Report and Recommendation.
It is therefore
ORDERED that Defendants’ motion to dismiss, docket number 43, is granted, and
Avila’s complaint is dismissed without prejudice. It is further
ORDERED that Avila’s motions to amend, docket numbers 42 and 61, are denied as
moot.
IT IS SO ORDERED.
s/Henry M. Herlong, Jr.
Senior United States District Judge
Greenville, South Carolina
July 21, 2011
3
NOTICE OF RIGHT TO APPEAL
Plaintiff is hereby notified that he has the right to appeal this order within sixty (60)
days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate
Procedure.
4
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