Powell v. Pressley et al

Filing 54

ORDER RULING ON REPORT AND RECOMMENDATION: The Court finds no clear error, adopts the Report (ECF # 50 ), and incorporates the Report by reference herein. Accordingly, Plaintiff's claims are DISMISSED WITHOUT PREJUDICE due to Plaintiffs failure to exhaust his administrative remedies.IT IS SO ORDERED. Signed by Honorable Sherri A Lydon on 1/07/2021. (dsto, )

4:19-cv-01818-SAL

Date Filed 01/07/21

Entry Number 54

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Derrick Powell,

Case No. 4:19-cv-1818-SAL
Plaintiff,

v.
ORDER
Lt. Travis Pressley, Sgt. Tommy Richardson,
Ofc. Kevin Harley, and Ofc. Tracy Howard,
Defendants.

This matter is before the Court for review of the October 29, 2020 Report and
Recommendation (“Report”) of United States Magistrate Thomas E. Rogers, III, made in
accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). [ECF No. 50].
In the Report, the Magistrate Judge recommends the defendants’ motion for summary judgment,
ECF No. 44, should be granted. Id. No party filed objections to this Report, and the time to do
so has passed. Id.
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
this Court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with
making a de novo determination of only those portions of the Report that have been specifically
objected to, and the Court may accept, reject, or modify the Report, in whole or in part. 28
U.S.C. § 636(b)(1). In the absence of objections, the Court is not required to provide an
explanation for adopting the Report and must “only satisfy itself that there is no clear error on
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) (citing Fed. R. Civ. P. 72 advisory committee’s note).
1

4:19-cv-01818-SAL

Date Filed 01/07/21

Entry Number 54

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After a thorough review of the Report, the applicable law, and the record of this case in
accordance with the above standard, the Court finds no clear error, adopts the Report, and
incorporates the Report by reference herein. Accordingly, Plaintiff’s claims are DISMISSED
WITHOUT PREJUDICE due to Plaintiff’s failure to exhaust his administrative remedies.1
IT IS SO ORDERED.
/s/Sherri A. Lydon
Sherri A. Lydon
United States District Judge

January 7, 2021
Florence, South Carolina

1

While it appears that Plaintiff’s administrative remedies are exhausted at this point, he failed to
do so before commencing this lawsuit on June 27, 2019. See [ECF No. 50 p.6]. Even though
Plaintiff has exhausted his remedies at the time of this Order, the proper disposition is still
dismissal without prejudice. See Moorehead v. Keller, 845 F. Supp. 2d 689, 693 (W.D.N.C.
2012) (holding that exhaustion is a mandatory prerequisite to filing suit); see also Petrucelli v.
Hasty, 605 F. Supp. 2d 410, 419 (E.D.N.Y. 2009) (“Courts must construe the exhaustion
requirement strictly because [a] prisoner who does not want to participate in the prison grievance
system will have little incentive to comply with the system's procedural rules unless
noncompliance carries a sanction and [t]he benefits of exhaustion can be realized only if the
prison grievance system is given a fair opportunity to consider the grievance.”) (internal
quotation marks omitted).
2