McNeil v. August et al

Filing 42

ORDER RULING ON REPORT AND RECOMMENDATION: Court grants 38 Report and Recommendation; and grants 29 Motion for Summary Judgment, filed by Sgt August. Signed by Honorable Terry L Wooten on 12/11/08. (swel, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA FLORENCE DIVISION Daniel McNeil, Jr., ) ) Plaintiff, ) ) vs. ) ) Sgt. NFN August, ) ) Defendant. ) ____________________________________) Civil Action No.: 4:07-542-TLW-TER ORDER Plaintiff, Daniel McNeil, Jr. ("plaintiff"), brought this civil action, pro se, pursuant to 42 U.S.C. 1983 on February 26, 2007. (Doc. #1). The defendant filed a Motion for Summary Judgment on April 16, 2008. (Doc. #29). The plaintiff filed a Response in Opposition on May 20, 2008. (Doc. #33). The defendant then filed a Reply on June 2, 2008. (Doc. #34). This matter now comes before this Court for review of the Report and Recommendation ("the Report") filed by United States Magistrate Judge Thomas E. Rogers, III, to whom this case had previously been assigned. (Doc. #38). In the Report, the Magistrate Judge recommends that the District Court grant the defendant's Motion for Summary Judgment. (Doc. #38). The plaintiff filed objections to the report. (Doc. #41). In conducting this 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. After careful review of the Report and objections thereto, the Court ACCEPTS the Report. (Doc. #38). Therefore, for the reasons articulated by the Magistrate Judge, defendant's Motion for Summary Judgment is GRANTED. IT IS SO ORDERED. s/Terry L. Wooten United States District Judge December 11, 2008 Florence, South Carolina 2

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