Thompson v. Turbeville Correctional Institution et al

Filing 79

OPINION AND ORDER ADOPTING 71 REPORT AND RECOMMENDATION re 40 Motion for Summary Judgment filed by Douglas Thompson, 57 Motion for Summary Judgment filed by Captain Kelley, Lt Harriet. Plaintiff's motion for summary judgment is denied. Defendants' motion for summary judgment is granted and this matter is dismissed without prejudice for failure to exhaust administrative remedies. Signed by Honorable Cameron McGowan Currie on 8/7/2013. (abuc) Modified to edit text on 8/7/2013 (abuc).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Douglas Thompson,

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Plaintiff,
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v.
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Captain Kelley; Lt. Harriet,
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Defendants.
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___________________________________ )

C/A NO. 0:12-2220-CMC-PJG

OPINION and ORDER

This matter is before the court on Plaintiff’s pro se complaint, filed in this court pursuant to
42 U.S.C. § 1983.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(d), DSC, this
matter was referred to United States Magistrate Judge Paige J. Gossett for pre-trial proceedings and
a Report and Recommendation (“Report”). On July 10, 2013, the Magistrate Judge issued a Report
recommending that Plaintiff’s motion for summary judgment be denied, Defendants’ motion for
summary judgment be granted and this matter dismissed due to Plaintiff’s failure to exhaust
administrative remedies. 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 filed
objections to the Report on August 5, 2013.
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
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the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28
U.S.C. § 636(b).
After conducting a de novo review as to objections made, and considering the record, the
applicable law, the Report and Recommendation of the Magistrate Judge, and Plaintiff’s objections,
the court agrees with the Report. Accordingly, the court adopts the Report in its entirety.
Plaintiff contends, in conclusory fashion, that Defendants have violated his constitutional
rights, and that 28 U.S.C. § 1997e(a) does not require that he exhaust administrative remedies prior
to filing suit because “ ‘prison conditions’ [ ] does not apply nor mention suiting about any inmates
[sic] ‘prison life’ dealing with tortious treatment of state officers against inmates . . . .” Obj. at 3
(ECF No. 77). However, Plaintiff is mistaken in his belief, as the statutory requirement clearly
applies to lawsuits such as Plaintiff’s suit against these Defendants.
Plaintiff’s motion for summary judgment is denied. Defendants’ motion for summary
judgment is granted and this matter is dismissed without prejudice for failure to exhaust
administrative remedies. See Bryant v. Rich, 530 F.3d 1368, 1375 n.11 (11th Cir. 2008) (noting that
district court’s dismissal without prejudice on summary judgment motion proper where “neither
party has evidenced that administrative remedies at [the correctional facility] are absolutely time
barred or otherwise clearly infeasible.”).
IT IS SO ORDERED.

s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE

Columbia, South Carolina
August 7, 2013

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