Booker v. South Carolina Department of Corrections et al

Filing 94

ORDER adopting 81 Report and Recommendation of Magistrate Judge Mary Gordon Baker; granting 67 Motion to Dismiss for Failure to State a Claim. Signed by Honorable Mary Geiger Lewis on 10/13/2016.(ssam, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION PATRICK L. BOOKER Plaintiff, § § § vs. § CIVIL ACTION NO.2:15-02986-MGL-MGB § PATRICIA GRAHAM, ANDERSON BLUE, § ERIC BROWN, FREDERICK FORD, ANNIE § SELLERS, EUGENE HOWARD, WILLIE § EAGLETON, CHARLES WEST, LEON § LOTT, and JOHN DOE, § Defendants. § ORDER ADOPTING THE REPORT AND RECOMMENDATION AND GRANTING DEFENDANT LEON LOTT’S MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT AGAINST HIM This case was filed as a 42 U.S.C. § 1983 action. The matter is before the Court for review of the Report and Recommendation (Report) of the United States Magistrate Judge suggesting Defendant Leon Lott’s Motion to Dismiss Plaintiff’s Second Amended Complaint against him be granted. The Report was made in accordance with 28 U.S.C. § 636 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 the Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo determination of those portions of the Report 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 with instructions. 28 U.S.C. § 636(b)(1). The Magistrate Judge filed the Report on August 12, 2016, but Plaintiff failed to file any objections. “[I]n 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). Moreover, a failure to object waives appellate review. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985). After a thorough review of the Report and the record in this case employing the standard set forth above, the Court adopts the Report and incorporates it herein. Therefore, it is the judgment of this Court Defendant Lott’s Motion to Dismiss the Second Amended Complaint against him is GRANTED. IT IS SO ORDERED. Signed this 13th day of October, 2016, in Columbia, South Carolina. s/ Mary G. Lewis MARY G. LEWIS UNITED STATES DISTRICT JUDGE ***** NOTICE OF RIGHT TO APPEAL Plaintiff is hereby notified of the right to appeal this Order within thirty days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure. 2

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