Henry v. Cartledge et al
Filing
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ORDER RULING ON REPORT AND RECOMMENDATION. The Court overrules Plaintiff's objections, adopts the Report 41 , and incorporates it herein. Therefore, it is the judgment of this Court that Defendants' motion for summary judgment 30 is GRANTED and this action is DISMISSED WITHOUT PREJUDICE for Plaintiff's failure to properly exhaust his administrative remedies. Signed by Honorable Mary G Lewis on 08/14/2014. (dsto, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
JOHN HENRY,
Plaintiff,
vs.
LARRY CARTLEDGE, Warden;
FLORENCE MAUNEY, Associate Warden;
KAYE A. HUMPHRIES, Commissary
Coordinator; CURTIS EARLEY, Major; and
STEPHEN CLAYTOR, Associate Warden,
Defendants.
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§ CIVIL ACTION NO. 4:13-1075-MGL-TER
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ORDER ADOPTING THE REPORT AND RECOMMENDATION,
GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT,
AND DISMISSING PLAINTIFF’S ACTION WITHOUT PREJUDICE
This case was filed as a 42 U.S.C. § 1983 action. Plaintiff is proceeding pro se. The matter
is before the Court for review of the Report and Recommendation (Report) of the United States
Magistrate Judge suggesting that Defendants’ motion for summary judgment be granted and this
action be dismissed for Plaintiff’s failure to properly exhaust his administrative remedies. The
Report was made in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of
South Carolina.
The Magistrate Judge makes only a recommendation to this Court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with the Court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo
determination of those portions of the Report to which specific objection is made, and the Court may
accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or
recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
The Magistrate Judge filed the Report on February 27, 2014, and the Clerk of Court entered
Plaintiff's objections on March 17, 2014. Defendants then filed a reply on March 24, 2014. The
Court has considered the objections, but finds them to be without merit. Therefore, it will enter
judgment accordingly.
There is no dispute that Defendants failed to provide a response to Plaintiff’s Step One
grievance within the applicable time period. But, when they finally did issue their response, Plaintiff
was informed that he had five days to file a Step Two grievance. He neglected to do so. Instead,
he filed this suit seven or so months later. But, as the Magistrate Judge observed, “Plaintiff cannot
fail to properly pursue and exhaust the prison’s Step Two appeal grievance procedure under [the
facts of this case] and then file a Complaint in this Court months later claiming the administrative
remedy was not available.” Report 7-8.
After a thorough review of the Report and the record in this case pursuant to the standard set
forth above, the Court overrules Plaintiff's objections, adopts the Report, and incorporates it herein.
Therefore, it is the judgment of this Court that Defendants’ motion for summary judgment is
GRANTED and this action is DISMISSED WITHOUT PREJUDICE for Plaintiff’s failure to
properly exhaust his administrative remedies.
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IT IS SO ORDERED.
Signed this 14th day of August, 2014, in Spartanburg, South Carolina.
s/ Mary G. Lewis
MARY G. LEWIS
UNITED STATES DISTRICT JUDGE
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NOTICE OF RIGHT TO APPEAL
Plaintiff is hereby notified of the right to appeal this Order within thirty (30) days from the
date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.
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