Hayes v. Director of SLRDC et al
Filing
88
ORDER RULING ON REPORT AND RECOMMENDATIONS. The court agrees with the conclusions of the Magistrate Judge. Defendants motion for summary judgment 67 is granted, and this matter is dismissed without prejudice for failure to exhaust administrative remedies. Signed by Honorable Cameron McGowan Currie on 05/02/2011. (dsto, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Favian Hayes,
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Plaintiff,
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v.
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Simon Major, Director of SLRDC;
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Ofc. Dixon; Ofc. Gardner; Daniel Jackson, )
inmate at SLRDC; and Major Darnell
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McGhaney,
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Defendants.
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___________________________________ )
C/A NO. 4:09-3324-CMC-TER
OPINION and ORDER
This matter is before the court on Plaintiff’s pro se complaint, filed in this court pursuant to
42 U.S.C. § 1983.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(d), DSC, this
matter was referred to United States Magistrate Judge Thomas E. Rogers, III, for pre-trial
proceedings and a Report and Recommendation (“Report”). On March 21, 2011, the Magistrate
Judge issued a Report recommending that Plaintiff’s complaint be dismissed with prejudice for
failure to prosecute. The Magistrate Judge advised Plaintiff of the procedures and requirements for
filing objections to the Report and the serious consequences if he failed to do so.
In response to the Report, Defendants supplied copies of Plaintiff’s responses to Defendants’
motion for summary judgment which were served on Defendants but were not filed with the court.
Dkt. #83 (filed Mar. 23, 2011). Additionally, Plaintiff filed objections to the Report on April 4,
2011.
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.
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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 reviews 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
“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.”) (citation omitted).
After conducting a de novo review as to objections made, and considering the record, the
applicable law, the Report and Recommendation of the Magistrate Judge, and Plaintiff’s objections,
the court agrees with the conclusions of the Magistrate Judge. Plaintiff offers no evidence – either
in his responses to Defendants’ motion for summary judgment or in his objections – that he
exhausted administrative remedies before bringing suit.
Therefore, Defendants’ motion for summary judgment is granted, and this matter is
dismissed without prejudice for failure to exhaust adminstrative remedies. See Bryant v. Rich, 530
F.3d 1368, 1375 n.11 (11th Cir. 2008) (noting that district court’s dismissal without prejudice on
summary judgment motion proper where “neither party has evidenced that administrative remedies
at [the correctional facility] are absolutely time barred or otherwise clearly infeasible.”).
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE
Columbia, South Carolina
May 2, 2011
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