Frierson v. Hughes et al

Filing 46

ORDER RULING ON REPORT AND RECOMMENDATION: The Court adopts and incorporates the Report and Recommendation (ECF No. 42 ) by reference into this order. It is therefore ORDERED that Defendants' motion to dismiss (ECF No. 20 ) is GRANTED and this case is dismissed with prejudice. Plaintiff's motion for summary judgment is deemed MOOT. (ECF No. 29 ). Signed by Honorable Mary G Lewis on 12/10/2013. (mcot, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION

Marcus Antonio Frierson,

) Civil Action No. 5:13-452-MGL
)
Plaintiff, )
)
v.
)
)
Ann Hughes, Gary Toney,
)
OPINION AND ORDER
)
Defendants. )
_______________________________ )

Plaintiff Marcus Antonio Frierson (“Plaintiff”), an inmate in the South Carolina
Department of Corrections, proceeding pro se, filed this action pursuant to 42 U.S.C. §
1983 February 20, 2013 alleging that Defendants violated his constitutional rights. (ECF
No. 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 May 14, 2013, Defendants
Ann Hughes and Gary Toney (“Defendants”) filed a motion to dismiss. (ECF No. 20). The
Court entered an order on May 15, 2013, pursuant to Roseboro v. Garrison, 528 F.2d 309
(4th Cir. 1975), advising Plaintiff of the importance of a dispositive motion and of the need
for him to file an adequate response. (ECF No. 22). On May 24, 2013, Plaintiff filed
opposition (ECF No. 28) to Defendants’ motion to dismiss, as well as a motion for summary
judgment. (ECF No. 29).
On November 14, 2013, Magistrate Judge West issued a Report recommending that
Defendants’ motion to dismiss be granted and Plaintiff’s motion for summary judgment be

deemed moot. (ECF No. 42). The Magistrate Judge advised Plaintiff of the procedures
and requirements for filing objections to the Report and Recommendation and the serious
consequences if he failed to do so. (ECF No. 42-1). Plaintiff filed no objections and the
time for doing so expired on December 5, 2013.
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 and
Recommendation 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). The Court reviews the Report and Recommendation only for clear
error in the absence of an objection. See Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005) (stating that “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.”)
(citation omitted).
After reviewing the motions and responses, the record, and the Report and
Recommendation of the Magistrate Judge, the Court finds no clear error. Accordingly, the
Court adopts and incorporates the Report and Recommendation (ECF No. 42) by

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reference into this order. It is therefore ORDERED that Defendants’ motion to dismiss
(ECF No. 20) is GRANTED and this case is dismissed with prejudice. Plaintiff’s motion
for summary judgment is deemed MOOT. (ECF No. 29) .
IT IS SO ORDERED.
/s/ Mary G. Lewis
United States District Judge
Spartanburg, South Carolina
December 10. 2013

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