McElrath v. South Carolina Department of Corrections et al

Filing 379

ORDER RULING ON REPORT AND RECOMMENDATION: The court overrules the plaintiff's objections and, to the extent it does not contradict this order, adopts and incorporates by reference the Magistrate Judge's Report and Recommendation 373 . Accordingly, the Report and Recommendation is incorporated herein by reference and this action is DISMISSED without prejudice. Signed by Honorable Bruce Howe Hendricks on 1/23/2015. (mcot, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA

Andrew Marshall McElrath,

) Civil Action No. 5:13-317-BHH
)
Plaintiffs, )
vs.
)
)
Robert Stevenson, Warden; Dennis
)
Bush, Warden; Lt. Rezendes; Sgt.
)
Davenport; Lt. Martin; Cpl. Narimanov;
)
OPINION AND ORDER
DOI Investigator Mr. Estes; Lt. Devine
)
Carter; Sgt. Dually; Cpl Morgan, and Lt.
)
Harvin,
)
)
Defendants. )
_________________________________ )
BACKGROUND
Plaintiff Andrew Marshal McElrath (“the plaintiff”), proceeding pro se, initiated this
civil rights action pursuant to 42 U.S.C. § 1983 against the defendants Robert
Stevenson, Dennis Bush, Warden, Lt. Rezendes, Sgt. Davenport, Lt. Martin, Cpl.
Narimanov, DOI Investigator Mr. Estes, Lt. Devine Carter, Sgt. Dually, Cpl Morgan, and
Lt. Harvin (“the defendants”). (Compl., ECF No. 1.) In accordance with 28 U.S.C.
§ 636(b) and Local Rule 73.02, D.S.C., the within action was referred to United States
Magistrate Judge Kaymani D. West for pretrial handling and a Report and
Recommendation.

Magistrate Judge West recommends that the court grant the

defendants’ motion for summary judgment (ECF No. 345) and deny the plaintiff’s motion
for summary judgment (ECF Nos. 337 and 370). (ECF No. 373.) The Report and
Recommendation sets forth in detail the relevant facts and standards of law on this
matter and the court incorporates them without recitation.

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STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the 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, 270–71, 96
S.Ct. 549, 46 L.Ed.2d 483 (1976).

The court is charged with making a de novo

determination of those portions of the Report and Recommendation 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). However, the court need not conduct a de novo review when a
party makes only “general and conclusory objections that do not direct the court to a
specific error in the magistrate's proposed findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir.1982). In the absence of a timely filed, specific
objection, the Magistrate Judge's conclusions are reviewed only for clear error. See
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
DISCUSSION
As noted above, the plaintiff filed objections to the Magistrate Judge's Report and
Recommendation which the Court has carefully reviewed.

The objections, while

specific, are unpersuasive, and the Court agrees with the Magistrate Judge’s
comprehensive and well-reasoned Report and Recommendation. Having conducted a
de novo review of the entire Report and Recommendation, the Court finds that the
Magistrate Judge fairly and accurately summarized the facts and applied the correct
principles of law. Upon review, the Court finds the plaintiff’s objections lack merit, and
they are hereby overruled.

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CONCLUSION
For the reasons stated above and by the Magistrate Judge, the court overrules
the plaintiffs’ objections and, to the extent it does not contradict this order, adopts and
incorporates by reference the Magistrate Judge's Report and Recommendation.
Accordingly, the Report and Recommendation is incorporated herein by reference and
this action is DISMISSED without prejudice.
IT IS SO ORDERED.
/s/ Bruce Howe Hendricks
United States District Judge
January 23, 2015
Greenville, South Carolina

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