Sheppard v. Tyger River CI et al

Filing 95

ORDER RULING ON REPORT AND RECOMMENDATION. The court adopts and incorporates the Report and Recommendation by reference in this Order. Therefore, Defendant's motion for summary judgment 48 is granted and this matter is dismissed without prejudice for failure to exhaust administrative remedies. Signed by Honorable Cameron McGowan Currie on 11/29/2011. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Dexter Antonio Sheppard, #312344,

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Plaintiff,
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v.
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Warden Tim Riley and Sgt. Derrick
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McBryar,
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Defendants.
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___________________________________ )

C/A NO. 1:10-2424-CMC-SVH

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 Shiva V. Hodges for pre-trial proceedings and
a Report and Recommendation (“Report”). On November 4, 2011, the Magistrate Judge issued a
Report recommending that Defendants’ motion for summary judgment be granted and that the
complaint be dismissed for 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 November 22,
2011.
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

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made. The court may accept, reject, or modify, in whole or in part, the recommendation made by
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 conclusions of the Magistrate Judge. Accordingly, the court adopts and
incorporates the Report and Recommendation by reference in this Order.
Plaintiff’s objections are a recitation of his contentions relating to the purported facts of this
matter, and do not specifically address his failure to exhaust his available administrative remedies
relating to the issues raised in the complaint regarding the alleged use of excessive force on April
14, 2010. Therefore, 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.”).1
IT IS SO ORDERED.

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

Columbia, South Carolina
November 29, 2011

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All other pending motions are hereby mooted by dismissal of this matter.
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