McFadden v. Reynolds et al

Filing 10

ORDER ADOPTING THE REPORT AND RECOMMENDATION, dismissing petitioner's complaint without prejudice and without issuance and service of process, for 8 Report and Recommendation, Signed by Honorable J Michelle Childs on May 1, 2013. (kbos)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Bernard McFadden, #199135,

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Petitioner,
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v.
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Ms. Reynolds, First Name Unknown,
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Warden of Kershaw; Mr. Washington,
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FNU Associate Warden of Kershaw; and
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Ms. Ball, FNU, Cafeteria Supervisor of
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Kershaw, in their individual or personal
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capacities,
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Respondents.
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____________________________________)

Civil Action No. 3:13-439-JMC

ORDER

This matter is before the court for review of the Magistrate Judge's Report and
Recommendation (“Report”) [Dkt. No. 8], filed on April 11, 2013, recommending that Petitioner’s
Complaint [Dkt. No. 1] be dismissed without prejudice for failure to exhaust administrative
remedies. Petitioner brought this action seeking relief pursuant to Title 42 U.S.C. § 1983. The
Report 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).

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Petitioner was advised of his right to file objections to the Report [Dkt. No. 8-7]. 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
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 [Dkt. No. 8]. For the
reasons articulated by the Magistrate Judge, it is therefore ORDERED that Petitioner’s Complaint
[Dkt. No. 1] is DISMISSED without prejudice and without issuance and service of process, for
failure to exhaust administrative remedies.
IT IS SO ORDERED.

United States District Judge
May 1, 2013
Columbia, South Carolina

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