-SVH Sharp v. South Carolina Department Corrections et al

Filing 19

ORDER ADOPTING 8 REPORT AND RECOMMENDATIONS, dismissing defendant SCDC without prejudice and without issuance and service of process. Signed by Honorable Joseph F Anderson, Jr on 11/3/09. (rpol, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA

) ) P l a in tif f , ) v. ) ) S o u th Carolina Department of Corrections; ) L eo n ard Longe, Sargeant; Jerry Alexander, ) C a p ta in ; and Tim Riley, Warden, ) ) D e f e n d a n ts . ) ______________________________________ )

B ria n Sharp,

C/A No. 9:09-2402-JFA-BM

ORDER

T h is matter is before the court for review of the Magistrate Judge's Report and R e c o m m e n d a tio n .1 T h e pro se plaintiff, Brian Sharp, is an inmate at the Tyger River C o rre c tio n a l Institution. He brings this action pursuant to 42 U.S.C. § 1983 alleging charges o f denial of clean drinking water, use of mace, and excessive force. In his Report and Recommendation, the Magistrate Judge suggests that the complaint ag ains t defendant South Carolina Department of Corrections (SCDC) is subject to summary d i s m i s s a l because the SCDC is immune from suit under the Eleventh Amendment. Fed. M a r itim e Comm'n v. S.C. State Ports Auth., 535 U.S. 743 (2002).

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).

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A s to the remaining defendants (Longe, Alexander, and Riley), the Magistrate Judge re c o m m e n d s that service of process of the complaint be made as to them. Because the M a g istra te Judge fairly and accurately summarizes the facts and standards of law in his R e p o rt, such will not be repeated herein. T h e plaintiff was advised of his right to file, and did file, objections to the Report and R e c o m m e n d a tio n , which was entered on the docket on September 17, 2009. However, the p lain tiff 's objections are without merit. A f te r carefully reviewing the applicable law, the record in this case, the Report and R ec o m m en d a t io n , and the objections thereto, the court agrees with the Magistrate Judge's re c o m m e n d a tio n and incorporates the Report herein by reference. Accordingly, defendant SCDC is dismissed without prejudice and without issuance a n d service of process. The Clerk is directed to serve the remaining defendants. IT IS SO ORDERED.

N o v e m b e r 3, 2009 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

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