Lowery v. South Carolina Department of Corrections

Filing 26

ORDER RULING ON REPORT AND RECOMMENDATION incorporating 14 Report and Recommendation, dismissing this action without prejudice and without issuance and service of process. Signed by Honorable Joseph F Anderson, Jr on 9/18/2012. (jpet, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA

Almonzo Lowery,

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Plaintiff,
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v.
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South Carolina Department of Corrections,
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Defendant.
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______________________________________ )

C/A No. 0:12-11-JFA-PJG

ORDER

The pro se plaintiff, Almonzo Lowrey, brings this action pursuant to 42 U.S.C. §
1983, contending that he received injuries from a defective light switch in the shower
dormitory where he is an inmate with the South Carolina Department of Corrections (SCDC).
He is suing the SCDC for emotional stress, endangerment, and neglect.
The Magistrate Judge assigned to this action1 has prepared a Report and
Recommendation and opines that the complaint should be summarily dismissed under 28
U.S.C. § 1915(e)(2)(B). The Report sets forth in detail the relevant facts and standards of
law on this matter, and the court incorporates such without a recitation.
The plaintiff was notified of his right to file objections to the Report and
Recommendation. The plaintiff filed timely objections to the Report.

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The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil
Rule 73.02. 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. Mathews
v. Weber, 423 U.S. 261 (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, 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. See 28 U.S.C. § 636(b)(1).

1

The Magistrate Judge correctly opines that the South Carolina Department of
Corrections has immunity from suit in this court under the Eleventh Amendment to the
United States Constitution.
The plaintiff objects to this finding asserting that the State did not give him time to
properly file his paperwork. He also indicates that he sent his paperwork to a private law
firm to review. He then attaches a letter, dated April 11, 2012, from the Bell Legal Group
that indicates it will look further into his case. To date, however, no appearance has been
made on behalf of the plaintiff by the Bell Legal Group.
After carefully reviewing the applicable laws, the record in this case, the Report and
Recommendation, and the objections thereto, this court finds the Magistrate Judge’s
recommendation fairly and accurately summarizes the facts and applies the correct principles
of law. The Report is incorporated herein by reference.
Accordingly, this action is dismissed without prejudice and without issuance and
service of process.
IT IS SO ORDERED.

September 18, 2012
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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