Al-Haqq v. Byars et al

Filing 112

ORDER adopting 109 Report and Recommendation of Magistrate Judge Wallace W Dixon; granting 70 Motion for Summary Judgment with respect to the plaintiff's failure to exhaust his administrative remedies; denying 111 Motion for Extension of Time to File Response/Reply re 109 REPORT AND RECOMMENDATION; finding as moot 36 Motion Physical Exam; finding as moot 49 Motion to Amend/Correct; finding as moot 22 Motion to Amend/Correct; finding as moot 29 Motion to Amend/Correct. The dismissal of this action shall be without prejudice. Signed by Honorable Joseph F Anderson, Jr on 9/3/2014.(ssam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

Bilal A. Al-Haqq,
Plaintiff,
vs.
William R. Byars, Jr., Director; Warden John
Pate; Major Walter Worrick; Lt. Jennings,
SMU; Sgt. A. DeLoach; Corporal Bryant,
SMU; Ofc. Ford; Ofc. Frasier; Dr. Thomas E.
Byrne; Nurse Alecia Jones-Thompson, in their
official and individual capacity,
Defendants.
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C/A No. 2:13-2043-JFA-WWD

ORDER

The pro se plaintiff, Bilal A. Al-Haqq, is an inmate with the South Carolina
Department of Corrections. At the time of the incidents giving rise to this action, the plaintiff
was housed at the Allendale Correctional Institution. He brings this action pursuant to
42 U.S.C. § 1983 alleging various violations of his constitutional rights including deliberate
indifference to this medical needs, excessive force, and retaliation.
The Magistrate Judge assigned to this action1 has prepared a thorough Report and

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The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local
Civil Rule 73.02. 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.
Mathews v. Weber, 423 U.S. 261 (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, and the court may accept,
reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter
to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1).
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Recommendation and opines that the defendants’ motion for summary judgment2 should be
granted for plaintiff’s failure to exhaust his administrative remedies. The Report sets forth
in detail the relevant facts and standards of law on this matter, and the court incorporates
such without a recitation.
The plaintiff was advised of his right to file objections to the Report and
Recommendation which was docketed on August 7, 2014. The plaintiff has not filed timely
objections. Instead, plaintiff seeks an extension of time to file a response to the Report,
noting that he is responding to multiple orders dealing with separate cases; that he has to
hand write all his pleadings and copies; and that he is without legal counsel and must wait
for scheduled times to perform legal research.
As the Magistrate Judge notes in his Report and Recommendation, the plaintiff has
failed to exhaust his administrative remedies as required under the Prison Litigation Reform
Act (“PLRA”), 42 U.S.C. § 1997e(a). The Magistrate Judge directed the defendants to
supplement their motion for summary judgment on this specific issue and opines that the case
should be dismissed without prejudice on the basis of failure to exhaust. This court agrees.
After carefully reviewing the applicable laws, the record in this case, and the Report
and Recommendation, this court adopts and incorporates the Report herein by reference.
Accordingly, the defendants’ motion for summary judgment (ECF No. 70) is granted with
respect to the plaintiff’s failure to exhaust his administrative remedies. The dismissal of this

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An order was issued pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) notifying
plaintiff of the summary dismissal procedure and possible consequences if he failed to adequately respond
to the motion for summary judgment. Plaintiff responded to the motions.
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action shall be without prejudice. Plaintiff’s motion for an extension of time to file
objections (ECF No. 111) is denied. Finally, plaintiff’s remaining motions (ECF Nos. 22,
29, 36, and 49) are now moot.
IT IS SO ORDERED.

September 3, 2014
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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