McElrath v. South Carolina Department of Corrections et al

Filing 291

ORDER RULING ON REPORT AND RECOMMENDATION: The Court ACCEPTS and incorporates the Report, (Doc. # 280 ), by reference into this Order. Defendant CO Gerity's Motion for Summary Judgment is thereby GRANTED, (Doc. # 171 ), and Plaintiff's Complaint as to Defendant CO Gerity and the March 8, 2013 hand incident is dismissed without prejudice. Signed by Honorable Mary G Lewis on 12/12/2013. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Andrew Marshall McElrath,

) Civil Action No. 5:13-317-MGL
)
Plaintiff, )
)
v.
)
)
ORDER
)
Robert Stevenson, et al.,
)
)
Defendants. )
______________________________________ )
Plaintiff Andrew Marshall McElrath (“Plaintiff”), proceeding pro se, filed this action
pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. (Doc. # 1). In
accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B), D.S.C., this matter was referred
to United States Magistrate Judge Kaymani D. West for pre-trial handling and a Report and
Recommendation (“Report”). On November 19, 2013, the Magistrate Judge issued a Report
recommending that the Court grant Defendant CO Gerity’s Motion for Summary Judgement, (Doc.
# 171), and dismiss Plaintiff’s Complaint without prejudice as against Defendant CO Gerity based
upon Plaintiff’s failure to exhaust available administrative remedies. (Doc. # 280). Objections to
the Report were due by December 6, 2013. Plaintiff has filed no objections to the Report.
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.
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). 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.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310,
315 (4th Cir. 2005).
After a careful review of the record, the applicable law, and the Report of the Magistrate
Judge, the Court finds no clear error. Accordingly, the Court ACCEPTS and incorporates the
Report, (Doc. # 280), by reference into this Order. Defendant CO Gerity’s Motion for Summary
Judgement is thereby GRANTED, (Doc. # 171), and Plaintiff’s Complaint as to Defendant CO
Gerity and the March 8, 2013 hand incident is dismissed without prejudice.
IT IS SO ORDERED.

s/Mary G. Lewis
United States District Judge
December 12, 2013
Spartanburg, South Carolina

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