Gamez-Gonzalez v. United States of America
ORDER RULING ON REPORT AND RECOMMENDATION: The court adopts the Magistrate Judge's Report and Recommendation and incorporates it herein. (ECF No. 48 ) It is therefore ORDERED that Plaintiff's Complaint (ECF No. 1 ) and Motion to Amend Complaint (ECF No. 45 ) are DISMISSED without prejudice.IT IS SO ORDERED. Signed by Honorable J Michelle Childs on 07/19/2017. (dsto, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
United States of America,
Civil Case No.: 4:14-cv-02668-JMC
Pro se Jose Gamez-Gonzalez (“Plaintiff”), a federal prisoner incarcerated at Estill Federal
Correctional Institution in South Carolina (“Estill FCI”), filed a Complaint pursuant to the Federal
Tort Claims Act, 28 U.S.C. §§ 2671–2680 (“FTCA”) on July 1, 2014. (ECF No. 1.) Plaintiff
alleges that “he has suffered neck, back and knee injuries which have gone unattended to and have
been neglected by the Bureau of Prisons medical staff.” (ECF No. 1-2 at 3.)
The Magistrate Judge’s Report and Recommendation, filed on May 17, 2017, recommends
that Plaintiff’s Complaint and Motion to Amend Complaint be dismissed without prejudice. (ECF
No. 48.) On April 10, 2017, Defendant filed a motion to dismiss Plaintiff’s Complaint. (ECF No.
40.) Because Plaintiff is proceeding pro se, on April 11, 2017, the court provided Plaintiff a notice
regarding summary judgment procedures and the possible consequences if he failed to respond
adequately to the court’s Order. (ECF No. 41.) On April 28, 2017, Plaintiff filed a response in
opposition to Defendant’s Motion to Dismiss and a Motion to Amend his Complaint to assert a
Bivens action. (ECF Nos. 44, 45.) On May 10, 2017, Defendant filed a response in opposition to
Plaintiff’s Motion to Amend Complaint, explaining that Plaintiff failed to exhaust his
administrative remedies. (ECF No. 47.) The Magistrate Judge recommended that Plaintiff’s FTCA
claim be dismissed pursuant to S.C. Code 15-36-100 (1976, as amended).1 (ECF No. 48. at 7.) As
to Plaintiff’s Motion to Amend to include a Bivens claim, the Magistrate Judge determined that his
proposed amendment does not cure his failure to exhaust administrative remedies in this action.
(ECF No. 48 at 11.) The Report and Recommendation sets forth in detail the relevant facts and
legal standards on this matter, and the court incorporates the Magistrate Judge’s recommendation
herein without a recitation.
The Magistrate Judge’s Report and Recommendation is made in accordance with 28 U.S.C.
§ 636(b)(1) 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 this court. Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The court is charged with making a de novo determination of those portions
of the Report and Recommendation to which specific objections are made, and the court may
accept, reject, or modify, in whole or in part, the Magistrate Judge’s recommendation or recommit
the matter with instructions. See 28 U.S.C. § 636(b)(1).
Plaintiff was advised of his right to file objections to the Report and Recommendation
(ECF No. 48-1.) However, Plaintiff filed no objections to the Report and Recommendation. In
the absence of objections to the Magistrate Judge’s Report and Recommendation, this court is not
required to provide an explanation for adopting the recommendation. Camby v. Davis, 718 F.2d
198, 199 (4th Cir. 1983). Rather, “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
In order to pursue a medical malpractice claim in South Carolina, a plaintiff must file “as part of
the complaint an affidavit of an expert witness which must specify at least one negligent act or
omission claimed to exist and the factual basis for each claim . . . .” S. C. Code Ann. § 15–36–100
(1976, as amended).
the face of the record in order to accept the recommendation.’” Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
Furthermore, failure to file specific written objections to the Report and Recommendation results
in a party’s waiver of the right to appeal from the judgment of the District Court based upon such
recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins,
766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
After a thorough review of the Report and Recommendation and the record in this case,
the court adopts the Magistrate Judge’s Report and Recommendation and incorporates it herein.
(ECF No. 48.) It is therefore ORDERED that Plaintiff’s Complaint (ECF No. 1) and Motion to
Amend Complaint (ECF No. 45) are DISMISSED without prejudice.
IT IS SO ORDERED.
United States District Judge
July 19, 2017
Columbia, South Carolina
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