Davis v. Eagleton

Filing 13

ORDER ADOPTING THE REPORT AND RECOMMENDATION, dismissing this action without prejudice and without service of process, for 8 Report and Recommendation, Signed by Honorable Mary G Lewis on July 25, 2012. (kbos)

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Jerry Davis,

#270224,

) Civil Action No.: 3:12-1292-MGL-JRM
)
Plaintiff, )
)
vs.
)
ORDER AND OPINION
)
Willie Eagleton, Warden,
)
)
Defendant. )
__________________________________
Plaintiff Jerry Davis is an inmate in cu stody of the South Carolina Department of
Corrections (SCDC). He is currently housed

at the Evans Correctional Institution in

Bennettsville, South Carolina. OnMay 22, 2012, Plaintiff proceedingpro se, filed this civil
rights action pursuant to 42 U.S.C. § 1983 due to being put on a special diet by medical
personnel. Plaintiff also contends he needs
medical treatment because he has high blood
pressure, heart trouble, a broken left arm, and no teeth (Dkt. #1 at 3-5.) In accordance
with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 D.S.C., this matter was referred to
United States Magistrate Judge Joseph R. McCrorey for pretrial handling. On June 12,
2012, Magistrate Judge McCrorey issueda Report and Recommendation recommending
inter alia that the court dismiss Plaintiff’s comp laint without prejudice due to Plaintiff’s
failure to exhaust his administrative remedies.
The Magistrate Judge makes only a recom

mendation to this court. The

recommendation has no presumptive weight. The responsibility to make a final
determination remains with t his court. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The court may accept, reject, or m odify, in whole or in par t, the findings or
recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1). The court may

also receive further evidence or recommi t the matter to the Magistrate Judge with
instructions. Id. The court is charged with making a

de novo determination of those

portions of the Report and Recommendation to which specific objections are made. On
June 12, 2012, Plaintiff was advised of his ri

ght to file objections to the Report and

Recommendation. (Dkt. #8 at 8). However, he has not done. 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 t he face of the record in order to acce pt the
recommendation.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005).
After a careful review of the record

, the applicable law, and the Report and

Recommendation, the court finds the Magistrate Judge’s recommendation to be proper.
Accordingly, the Report and Recommendation is
incorporated herein by reference and this
action is DISMISSED without prejudice and without service of process.
CERTIFICATE OF APPEALABILITY
The law governing certificates of appealability provides that:
(c) (2) A certificate of appealability may i ssue ... only if the applicant has made a
substantial showing of the denial of a constitutional right.
(c) (3) The certificate of appealab ... shall indicate which spec issue or issues satisfy
ility
ific
the showing required by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable
jurists would find this court's assessment of constitutional claims is debatable or wrong
his
and that any dispositive procedural ruling by the district court is likewise debatable. See
Miller–El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack
v. McDaniel, 529 U.S. 473, 484, 120 S.C t. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee,

252 F.3d 676, 683 (4th Cir .2001). In this case, the legal standard for the issuance of a
certificate of appealability has not been met.
IT IS SO ORDERED.
/s/ Mary G. Lewis
United States District Judge
Spartanburg, South Carolina
July 25, 2012.