McFadden et al v. Fuller et al

Filing 42

ORDER adopting 38 Report and Recommendation of Magistrate Judge Bruce Howe Hendricks. It is therefore ORDERED that Defendants Michael L. Fair and Boyd H. Parr are SUMMARILY DISMISSED without prejudice from this case, and th at Plaintiff's Complaint [ECF No.1] is to be served only upon Defendants Marcia Fuller and John and Jane Does. Furthermore, Plaintiff's claims against Defendants Fuller and John and Jane Does, insofar as Plaintiff seeks declaratory and inj unctive relief against them in their individual capacities,is SUMMARILY DISMISSED without prejudice. Therefore, the only remaining claims in this case are Plaintiff's claims for monetary damages against Defendants Fuller and John and Jane Does, in their individual capacities. Signed by Honorable J Michelle Childs on 12/31/2013.(ssam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Bernard McFadden,

)
)
Plaintiff,
)
)
v.
)
)
Marcia Fuller, SCDC Dietician; John and )
Jane Does, Kershaw Cafeteria Supervisors; )
Michael L. Fair, Legislative
)
Audit Council, et al.; Boyd H. Parr,
)
Director of Poultry Products and
)
Inspection, in their individual or personal )
capacities,
)
)
Defendants.
)
____________________________________)

Civil Action No. 2:13-cv-02290-JMC

ORDER

This matter is before the court for review of the magistrate judge's Report and
Recommendation (“Report”) [ECF No. 38], filed on December 13, 2013, recommending that
Defendants Michael L. Fair and Boyd H. Parr be summarily dismissed without prejudice from this
case, and that Plaintiff’s Complaint [ECF No.1] be served only upon Defendants Marcia Fuller, and
John and Jane Does. The magistrate judge’s Report further recommends that Plaintiff’s claims
against Defendants Fuller and John and Jane Does, insofar as Plaintiff seeks declaratory and
injunctive relief against them in their individual capacities, be summarily dismissed without
prejudice. Therefore, the only remaining claims in this case should be Plaintiff’s claims for
monetary damages against Defendants Fuller and John and Jane Does, in their individual capacities.

Plaintiff brought this action seeking relief pursuant to Title 42 U.S.C. § 1983. The Report

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sets forth in detail the relevant facts and legal standards on this matter which the court incorporates
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 Court is not bound
by the recommendation of the magistrate judge but, instead, retains responsibility for the final
determination.” Wallace v. Hous. Auth., 791 F. Supp. 137, 138 (D.S.C. 1992) (citing Matthews v.
Weber, 423 U.S. 261, 271 (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
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 [ECF No. 38-9]. However,
Petitioner filed no objections to the Report. In the absence of objections to the magistrate judge's
Report, 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
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).
Therefore, after a thorough and careful review of the Report and the record in this case, the
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court finds the Report provides an accurate summary of the facts and law in the instant case and the
record in this case. The court ACCEPTS the Report and Recommendation [ECF No. 38]. For the
reasons articulated by the magistrate judge, it is therefore ORDERED that Defendants Michael L.
Fair and Boyd H. Parr are SUMMARILY DISMISSED without prejudice from this case, and that
Plaintiff’s Complaint [ECF No.1] is to be served only upon Defendants Marcia Fuller and John and
Jane Does. Furthermore, Plaintiff’s claims against Defendants Fuller and John and Jane Does,
insofar as Plaintiff seeks declaratory and injunctive relief against them in their individual capacities,
is SUMMARILY DISMISSED without prejudice. Therefore, the only remaining claims in this case
are Plaintiff’s claims for monetary damages against Defendants Fuller and John and Jane Does, in
their individual capacities
IT IS SO ORDERED.

United States District Judge
December 31, 2013
Columbia, South Carolina

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