Hernandez v. Barfield et al

Filing 111

ORDER RULING ON REPORT AND RECOMMENDATION. The Court hereby ACCEPTS the Report 97 . The Motion to Dismiss, or in the alternative, for Summary Judgment filed by Defendants Blocker and Rosario 56 , and the Motion to Dismiss fi led by Defendant Barfield 59 , are thereby GRANTED. The Plaintiff's Motions to Amend 64 , 80 , and Motion to Appoint Counsel 70 are thereby DENIED. In addition, Plaintiff's Motion to Amend or Correct his Objections to the Report 102 is GRANTED. The Court considered that amended Objection in its analysis. However, Plaintiff's Motion for a CT Scan Examination 100 , is DENIED as MOOT in light of the Court's acceptance of the Report. Signed by Honorable Terry L Wooten on 9/21/2012. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

Rogelio Saldana Hernandez,

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Plaintiff,
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v.
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MD, ENT Williams Barfield, III, et al.,
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Defendants.
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___________________________________ )

Civil Action No.: 5:11-641-TLW-KDW

ORDER
On March 17, 2011, the Plaintiff, Rogelio Saldana Hernandez (“Plaintiff”), proceeding
pro se, filed this civil action pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). (Doc. # 1).
The matter now comes before this Court for review of the Report and Recommendation
(“the Report”) filed by United States Magistrate Judge Kaymani D. West, to whom this case had
previously been assigned. In the Report, the Magistrate Judge recommends that the Motion to
Dismiss, or in the alternative, for Summary Judgment filed by Defendants Blocker and Rosario,
(Doc. # 56), and the Motion to Dismiss filed by Defendant Barfield, (Doc. # 59), be granted, and
further, that Plaintiff’s Motions to Amend, (Docs. # 64 and # 80), and Motion to Appoint
Counsel, (Doc. # 70), be denied. (Doc. # 97). Plaintiff filed an Objection, (Doc. # 99), and then
moved to amend or correct that filing. (Doc. # 102). The Defendants filed replies to Plaintiff’s
Objection, (Docs. # 104 and # 105), and Plaintiff filed a sur-reply. (Doc. # 110). In conducting
its 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 Plaintiff’s Objection and amended Objection. After careful review of the Report and
objections thereto, the Court hereby ACCEPTS the Report. (Doc. # 97).

The Motion to

Dismiss, or in the alternative, for Summary Judgment filed by Defendants Blocker and Rosario,
(Doc. # 56), and the Motion to Dismiss filed by Defendant Barfield, (Doc. # 59), are thereby
GRANTED. The Plaintiff’s Motions to Amend, (Docs. # 64 and # 80), and Motion to Appoint
Counsel, (Doc. # 70), are thereby DENIED. In addition, Plaintiff’s Motion to Amend or Correct
his Objection to the Report, (Doc. # 102), is GRANTED. The Court considered that amended
Objection in its analysis. However, Plaintiff’s Motion for a CT Scan Examination, (Doc. # 100),
is DENIED as MOOT in light of the Court’s acceptance of the Report.
IT IS SO ORDERED.

September 21, 2012
Florence, South Carolina

__s/Terry L. Wooten______
United States District Judge