Scott v. Palmetto Healthcare LLC

Filing 36

ORDER RULING ON REPORT AND RECOMMENDATIONS adopting 31 Report and Recommendations, granting 20 Motion to Dismiss filed by Palmetto Healthcare LLC. Signed by Honorable Margaret B Seymour on 11/17/2010. (asni, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA G e ra ld Lee Scott, ) ) C/A No. 2:10-0474-MBS Plaintiff, ) ) vs. ) ) ORDER P a lm e tto Healthcare LLC, ) ) D e fe n d a n t . ) ____________________________________) P la in tiff Gerald Lee Scott, proceeding pro se, filed the within complaint on March 1, 2010, a l l e gi n g that he was subjected to gender discrimination by his former employer, Defendant Palmetto H e alth c a re LLC. See 42 U.S.C. §§ 2000e et seq. This matter is before the court on motion to dismiss filed by Defendant on August 5, 2010.

On August 6, 2010, an order was issued in pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the dismissal procedures and the possible consequences of failing to respond adequately. Plaintiff filed an affidavit in opposition to Defendant's motion on September 10, 2010.
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., the within action was re fe rre d to United States Magistrate Judge Bruce Howe Hendricks for pretrial handling. The M a gis tra te Judge issued a Report and Recommendation on October 20, 2010 in which she r e c o m m e n d e d that the within action be dismissed because Plaintiff had not exhausted his a d m in is tra tiv e remedies with the Equal Employment Opportunity Commission. See 42 U.S.C. § 2 0 0 0 e -5 (e ). Plaintiff filed no objection to the Report and Recommendation. T h e Magistrate Judge makes only a recommendation to this court. The recommendation has n o presumptive weight. The responsibility for making a final determination remains with this court. M a th e w s v. Weber, 423 U.S. 261, 270 (1976). The court is charged with making a de novo

d e t e r m i n a t io n of any portions of the Report and Recommendation to which a specific objection is m a d e . The court may accept, reject, or modify, in whole or in part, the recommendation made by the M a gis tra te Judge or may recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). In the absence of a timely filed objection, a district court need not conduct a de novo r e v i e w , but instead must "only satisfy itself that there is no clear error on the face of the record in o rd e r to accept the recommendation." Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315

(4th Cir. 2005).
The court has carefully reviewed the record. The court adopts the recommendation of the M a gis tra te Judge that Defendant's motion to dismiss be granted because Plaintiff has not exhausted h is administrative remedies. Plaintiff's complaint is dismissed without prejudice. The court e x p re s s e s no opinion regarding the merits of Plaintiff's allegations. IT IS SO ORDERED.

/ s / Margaret B. Seymour United States District Judge C o l u m b ia , South Carolina N o v e m b e r 17, 2010.

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