Brown v. Miller et al
Filing
60
ORDER and OPINION granting 31 Motion for Summary Judgment. Defendants motion for summary judgment is granted and this matter is dismissed withoutprejudice for failure to exhaust administrative remedies. Signed by Honorable Cameron McGowan Currie on 5/2/11.(hhil, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Mario Brown, #301990,
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Plaintiff,
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v.
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Capt. NFN Miller; Capt. NFN Tinch;
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Lt. NFN Lasley; Officer NFN Sewell;
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Nurse NFN Ryan; Lt. Hunter,
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Defendants.
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___________________________________ )
C/A NO. 2:10-1025-CMC-BHH
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 Bruce Howe Hendricks for pre-trial
proceedings and a Report and Recommendation (“Report”). On February 17, 2011, the Magistrate
Judge issued a Report recommending that this matter be dismissed with prejudice due to Plaintiff’s
failure to prosecute this action. On February 24, 2011, Plaintiff filed a motion for appointment of
counsel, and on March 1, 2011, this court received Plaintiff’s objections to the Report. On March
7, 2011, this court gave Plaintiff the additional opportunity to respond to Defendants’ summary
judgment motion. On March 22, 2011, Plaintiff responded to Defendants’ summary judgment
motion, seeking that this matter be dismissed without prejudice “to file again once his administrative
remedies [have] been exhausted.” Resp. at 1 (Dkt. #58, filed Mar. 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.
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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).
After reviewing the record of this matter, the applicable law, the Report and
Recommendation of the Magistrate Judge, and Plaintiff’s motion and objections, the court declines
to adopt the Report of the Magistrate Judge.
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.”).
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE
Columbia, South Carolina
May 2, 2011
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