Vickery et al v. McBride et al

Filing 35

ORDER agreeing with the 31 Report and Recommendation, dismissing this action without prejudice, without further leave to amend and without issuance and service of process pursuant to Rule 41(b). Signed by Honorable Donald C. Coggins, Jr. on 4/26/2024. (lbak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Russell Vickery,

)
)
Plaintiff,
)
)
v.
)
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Sheriff Chad McBride, Captain David
)
Baker, Admin. Lt. Nathan Mitchell,
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Medical Director John Doe, Medical
)
Supervisor John Doe,
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Defendants.
)
________________________________ )

Case No. 1:23-cv-05647-DCC

ORDER

This matter is before the Court on Plaintiff’s Complaint alleging violations of his
constitutional rights. ECF No. 1. In accordance with 28 U.S.C. § 636(b) and Local Civil
Rule 73.02(B)(2) (D.S.C.), this matter was referred to United States Magistrate Judge
Shiva V. Hodges for pre-trial proceedings and a Report and Recommendation (“Report”).
On March 5, 2024, the Magistrate Judge issued a Report recommending that this action
be dismissed pursuant to Federal Rule of Civil Procedure 41(b). The Magistrate Judge
further noted that this action was subject to summary dismissal upon a review of the
merits of Plaintiff’s claims. The Magistrate Judge advised Plaintiff of the procedures and
requirements for filing objections to the Report and the serious consequences for failing
to do so. Plaintiff has not filed objections to the Report and the time to do so has lapsed.

APPLICABLE LAW AND ANALYSIS
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 the Magistrate Judge or
recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b).
The Court will review the Report only for clear error in the absence of an objection. See
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating
that “in the absence of a timely filed objection, a district court need not conduct a de novo
review, but instead must only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.” (citation omitted)).
As an initial matter, to the extent that Plaintiff’s earlier filings [23, 28, 30] could be
liberally construed as objections to orders of the Magistrate Judge, the Court has
reviewed all of the Magistrate Judge's orders and finds that they are not clearly erroneous
or contrary to law. See Wall v. Rasnick, 42 F.4th 214, 217 (4th Cir. 2022) (“In reviewing
nondispositive written orders issued by a magistrate judge, a district court ‘must consider
timely objections and modify or set aside any part of the order that is clearly erroneous or
is contrary to law.’” (quoting Fed. R. Civ. P. 72(a)). Accordingly, any such objection is
overruled.

2

Moreover, as noted above, Plaintiff did not file objections to the Report. Upon
review for clear error, the Court agrees with the recommendation of the Magistrate Judge.
This action is DISMISSED without prejudice, without further leave to amend, and without
issuance and service of process pursuant to Rule 41(b).1
IT IS SO ORDERED.
s/ Donald C. Coggins, Jr.
United States District Judge
April 26, 2024
Spartanburg, South Carolina

1

In the alternative, the Court further agrees with the Magistrate Judge that
Plaintiff’s claims are subject to summary dismissal.
3