Durrance v. South Carolina Department of Corrections et al

Filing 62

ORDER adopting 59 Report and Recommendation of Magistrate Judge Bruce Howe Hendricks. It is ORDERED that Defendants 18 Motion to Dismiss be treated as a Motion for Summary Judgment and be GRANTED and that all of other pending motions be DISMISSED as moot. Signed by Honorable J Michelle Childs on 12/22/11.(hhil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Larry Durrance,
)
)
Plaintiff,
)
)
v.
)
)
Lavern Cohen, Warden; Dr. Moore,
)
Medical Director; Dr. Hammock,
)
Resident M.D., Nurse Davis, RN Head
)
Nurse; Nurse Canaday, LPN; and
)
Nurse Simmons, LPN,
)
)
Defendants.
)
____________________________________)

C.A. No.2:11-cv-00368-JMC

ORDER

This matter is before the court on the Magistrate Judge’s Report and Recommendation [Doc.
59]. Plaintiff filed the Complaint alleging a claim under 42 U.S.C. § 1983. The Magistrate Judge’s
Report and Recommendation, filed on December 1, 2011, recommends that Defendant’s Motion to
Dismiss [Doc. 18] be treated as a Motion for Summary Judgment and be granted and that all of other
pending motions be dismissed as moot. The Report and Recommendation sets forth in detail the
relevant facts and legal standards on this matter, and the court incorporates the Magistrate Judge’s
recommendation herein without a recitation.
The Magistrate Judge’s Report and Recommendation is made in accordance with 28 U.S.C.
§ 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge
makes only a recommendation to this court. The recommendation has no presumptive weight. The
responsibility to make a final determination remains with this 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 objections are made, and the court
may accept, reject, or modify, in whole or in part, the Magistrate Judge’s recommendation or

1

recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
Plaintiff was advised of his right to file objections to the Report and Recommendation [Doc.
59 at 14]. However, Plaintiff filed no objections to the Report and Recommendation.
In the absence of objections to the Magistrate Judge’s Report and Recommendation, this
court is not required to provide an explanation for adopting the recommendation. See Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, “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.’” Diamond v.
Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72
advisory committee’s note). Furthermore, failure to file specific written objections to the Report and
Recommendation results in a party’s waiver of the right to appeal from the judgment of the District
Court based upon such recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140
(1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th
Cir. 1984).
After a thorough review of the Report and Recommendation and the record in this case, the
court adopts the Magistrate Judge’s Report and Recommendation [Doc. 59]. It is therefore
ORDERED that Defendant’s Motion to Dismiss [Doc. 18] be treated as a Motion for Summary
Judgment and be GRANTED and that all of other pending motions be DISMISSED as moot.

IT IS SO ORDERED.

United States District Judge
Greenville, South Carolina
December 22, 2011

2