Jenkins v. United States

Filing 70

ORDER ACCEPTING THE REPORT AND RECOMMENDATION for 61 Report and Recommendation, granting 54 Motion for Summary Judgment, filed by United States, denying 42 Motion for Summary Judgment, filed by Clarence B Jenkins, Jr. Signed by Chief Judge Terry L Wooten on January 30, 2019. (kbos)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Clarence B. Jenkins, Jr.,

)
)
Plaintiff,
)
)
v.
)
)
United States,
)
)
Defendant.
)
__________________________________________)

C/A No. 3:17-cv-1775-TLW
ORDER

Plaintiff Clarence B. Jenkins, Jr., proceeding pro se, filed this action pursuant to the Federal
Tort Claims Act, 28 U.S.C. §§ 2671-2680, 1346(b), alleging that Defendant United States
negligently placed a suggestion box over chairs in the Dorn VA Medical Center. ECF No. 1. The
parties filed cross motions for summary judgment, ECF Nos. 42, 54, which have been fully briefed.
This matter now comes before the Court for review of the Report and Recommendation
(the Report) filed on September 25, 2018, by United States Magistrate Judge Paige J. Gossett, to
whom this case was previously assigned pursuant to 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2), (D.S.C.). ECF No. 61. In the Report, the Magistrate Judge recommends denying
Plaintiff’s motion and granting Defendant’s motion. Id. Plaintiff filed objections to the Report,
ECF Nos. 64, 66, 68, and Defendant filed a reply, ECF No. 67. This matter is now ripe for
disposition.
This Court is charged with conducting a de novo review of any portion of the Magistrate
Judge’s Report and Recommendation to which a specific objection is registered, and may accept,
reject, or modify, in whole or in part, the recommendations contained in that Report. 28 U.S.C.
§ 636. In conducting its review, the Court applies the following standard:

The magistrate judge makes only a recommendation to the Court, to which any
party may file written objections.... The Court is not bound by the recommendation
of the magistrate judge but, instead, retains responsibility for the final
determination. The Court is required to make a de novo determination of those
portions of the report or specified findings or recommendation as to which an
objection is made. However, the Court is not required to review, under a de novo
or any other standard, the factual or legal conclusions of the magistrate judge as to
those portions of the report and recommendation to which no objections are
addressed. While the level of scrutiny entailed by the Court's review of the Report
thus depends on whether or not objections have been filed, in either case the Court
is free, after review, to accept, reject, or modify any of the magistrate judge's
findings or recommendations.
Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992) (citations
omitted).
In light of the standard set forth in Wallace, the Court has reviewed, de novo, the Report
and the objections. The Court concludes that Plaintiff’s filings offer no factual support for his legal
conclusions that Defendant negligently placed the suggestion box. Further, Plaintiff has not
presented the Court with sufficient evidence of negligence because he stated, “I did noticed [sic]
the suggestion box located on the wall but it appeared to be not in the way.” ECF No. 54-2 at 3.
For the reasons articulated by the Magistrate Judge, it is hereby ORDERED that the Plaintiff’s
objections are OVERRULED and the Magistrate Judge’s Report and Recommendation, ECF No.
61, is ACCEPTED. Plaintiff’s motion for summary judgment, ECF No. 42, is DENIED, and
Defendant’s motion for summary judgment, ECF No. 54, is GRANTED. Pursuant to this Order,
this case is hereby DISMISSED.
IT IS SO ORDERED.

January 30, 2019
Columbia, South Carolina

s/Terry L. Wooten____________
Chief United States District Judge