Cooper v. Miller et al

Filing 46

ORDER ADOPTING THE REPORT AND RECOMMENDATION, granting defendants' motion for summary judgment, denying plaintiff's motion for default judgment and dismissing this matter with prejudice, for 36 Motion for Default Judgment filed by Terry Cooper, 26 Motion for Summary Judgment, filed by Edward J Turmell, K Miller, McDougal. Signed by Honorable Cameron McGowan Currie on October 31, 2008. (kbos)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION Terry Cooper, #118061, ) ) Plaintiff, ) ) v. ) ) Sgt. K. Miller; ) Nurse McDougal; and ) Edward J. Turmell, individually and in ) their official capacities, ) ) Defendants. ) ___________________________________ ) C/A NO. 3:08-1006-CMC-JRM

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 Joseph R. McCrorey for pre-trial proceedings and a Report and Recommendation ("Report"). On October 3, 2008, the Magistrate Judge issued a Report recommending that Defendants' motion for summary judgment be granted and Plaintiff's motion for default judgment be denied. The Magistrate Judge advised Plaintiff of the procedures and requirements for filing objections to the Report and the serious consequences if he failed to do so. Plaintiff filed objections to the Report on October 22, 2008. 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. 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 objections, the court agrees with the conclusions of the Magistrate Judge. Accordingly, the court adopts and incorporates the Report and Recommendation by reference in this Order. Plaintiff's complaint is defective for failure to exhaust administrative remedies. However, even if Plaintiff were to properly exhaust his administrative remedies and return to this court, he cannot overcome Defendants' motion for summary judgment. Therefore, Defendants' motion for summary judgment is granted, Plaintiff's motion for default judgment is denied, and this matter is dismissed with prejudice. IT IS SO ORDERED. s/ Cameron McGowan Currie CAMERON MCGOWAN CURRIE UNITED STATES DISTRICT JUDGE Columbia, South Carolina October 31, 2008

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