Booker v. Shearouse et al

Filing 47

ORDER. The court ADOPTS 44 Report and Recommendation of Magistrate Judge Mary Gordon Baker, DENIES 13 Motion for Judgment by Default and GRANTS 22 Motion for Summary Judgment. The Plaintiff's complaint is dismissed. Signed by Honorable Donald C Coggins, Jr on 02/13/2019. (hada, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Patrick L. Booker,

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Plaintiff,
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)
vs.
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Daniel E. Shearouse and Brenda F. Shealy,
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Defendants. )
_____________________________________ )

C/A No. 3:18-cv-00984-DCC

ORDER

This matter is before the Court on Plaintiff’s Complaint alleging violations of his
civil rights pursuant to 42 U.S.C. § 1983. ECF No. 1. On April 20, 2018, Plaintiff filed a
Motion for Judgment by Default. ECF No. 13. Defendants filed a Response in Opposition.
ECF No. 14. On August 10, 2018, Defendants filed a Motion for Summary Judgment.
ECF No. 22. Plaintiff filed a Response in Opposition, Defendants filed a Reply, and
Plaintiff filed a Sur-Reply.1 ECF Nos. 39, 43, 46. In accordance with 28 U.S.C. ' 636(b)
and Local Civil Rule 73.02(B)(2), (D.S.C.), this matter was referred to United States
Magistrate Judge Mary Gordon Baker for pre-trial proceedings and a Report and
Recommendation (AReport@). On January 2, 2019, the Magistrate Judge issued a Report
recommending that Plaintiff’s Motion be denied and Defendants’ Motion be granted. ECF
No. 44. The Magistrate Judge advised Plaintiff of the procedures and requirements for

1

Plaintiff’s Sur-Reply was filed more than three weeks after the Reply and after
the Magistrate Judge issued the Report and Recommendation. Out of an abundance of
caution for a pro se Plaintiff, the Court has considered the Sur-Reply in its decision.

filing objections to the Report and the serious consequences if he failed to do so. Plaintiff
has filed no objections, and the time to do so has passed.
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).
The Court will review the Report only for clear error in the absence of an objection. See
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating
that Ain the absence of 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.@ (citation omitted)).
After considering the record in this case, the applicable law, and the Report of the
Magistrate Judge, the Court finds no clear error and agrees with the Report=s
recommendation. Accordingly, the Court adopts the Report by reference in this Order.
The Motion for Judgment by Default [13] is DENIED and the Motion for Summary
Judgment [22] is GRANTED.
IT IS SO ORDERED.
February 13, 2019
Spartanburg, South Carolina

s/ Donald C. Coggins, Jr.
United States District Judge

NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and 4
of the Federal Rules of Appellate Procedure.