Jenkins v. Smith et al
Filing
42
OPINION & ORDER adopting the 38 Report and Recommendation, granting Defendants' 20 motion to dismiss and granting Jenkins' 40 motion to amend. Jenkins is permitted twenty-one (21) days from the date of this order to file an amended complaint asserting an FTCA claim against the United States. Ordered that this matter is referred to the magistrate judge for further proceedings. (Specific Document due by 3/25/2019.) Signed by Honorable Henry M. Herlong, Jr on 3/4/2019. (lbak)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Steve Jenkins,
Plaintiff,
vs.
J. Smith, Case Manager,
T. Jenkins, Case Manager, and
Designation and Sentence Computation
Center (DSCC),
Defendants.
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C.A. No. 1:18-995-HMH-SVH
OPINION & ORDER
This matter is before the court with the Report and Recommendation of United States
Magistrate Judge Shiva V. Hodges, made in accordance with 28 U.S.C. § 636(b)(1) and Local
Civil Rule 73.02 of the District of South Carolina.1 Steve Jenkins (“Jenkins”), a federal prisoner
proceeding pro se, alleges violations of the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
1346(b), and constitutional violations pursuant to Bivens v. Six Unknown Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), against J. Smith, T. Jenkins, and the Designation and
Sentence Computation Center (collectively “Defendants”). In her Report and Recommendation
filed on February 14, 2019, Magistrate Judge Hodges recommends granting Defendants’ motion
to dismiss and permitting Jenkins twenty-one days to file an amended complaint asserting an
FTCA claim against the United States. (R&R 10-11, ECF No. 38.)
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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).
Jenkins filed objections to the Report and Recommendation. (Objs., generally, ECF
No. 41.) 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 Jenkins’ objections are non-specific, unrelated to the dispositive
portions of the magistrate judge’s Report and Recommendation, or merely restate his claims.
Accordingly, after review, the court finds that Jenkins’ objections are without merit.
In addition, Jenkins filed a motion to amend his complaint. (Mot. Amend, ECF No. 40.)
In light of the magistrate judge’s recommendation that Jenkins be permitted twenty-one days to
amend his complaint in order to state an FTCA claim against the United States, the court grants
Jenkins’ motion.
Therefore, after a thorough review of the magistrate judge’s Report and the record in this
case, the court adopts Magistrate Judge Hodges’ Report and Recommendation and incorporates it
herein by reference.
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It is therefore
ORDERED that Defendants’ motion to dismiss, docket number 20, is granted. It is
further
ORDERED that Jenkins’ motion to amend, docket number 40, is granted, and Jenkins is
permitted twenty-one (21) days from the date of this order to file an amended complaint asserting
an FTCA claim against the United States. It is further
ORDERED that this matter is referred to the magistrate judge for further proceedings.
IT IS SO ORDERED.
s/Henry M. Herlong, Jr.
Senior United States District Judge
Greenville, South Carolina
March 4, 2019
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.
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