Brinkley v. Three Unknown Correctional Officers of the South Carolina Department of Corrections at Evans Correctional Institutition

Filing 49

ORDER FINDING 47 Report and Recommendations proper; This action is dismissed as to defendants Three Unknown Correctional Officers pursuant to Fed. R. Civ. P. 12(b)(4) and (5). Signed by Honorable Joseph F Anderson, Jr on 5/6/2010. (mbro, )

U N I T E D STATES DISTRICT COURT D IS T R IC T OF SOUTH CAROLINA

A lon zo R. Brinkley, II, P l a in tif f , vs. T hree Unknown Correctional Officers of the South C a ro lin a Department of Corrections at Evans C o rre c tio n a l Institution; Sergeant Samuel Wilson, D e f e n d a n ts . ___________ _ _ _ _ _ _ _ _ _ _ _ __________________

) C/A No. 6:07-3626-JFA-WMC ) ) ) ) ORDER ) ) ) ) ) ) )

T h e pro se plaintiff, Alonzo Brinkely, filed this action on November 5, 2007 pursuant to 42 U.S.C. § 1983. He alleges while he was incarcerated at the Evans Correctional In s titu tio n in 2004, he was assaulted and battered by the defendants during an institutional lo c k down. T h e Magistrate Judge assigned to this action 1 has prepared a Report and R e c o m m e n d a tio n wherein he suggests that this court should dismiss the defendants captioned " T h r ee Unknown Correctional Officers." The Magistrate Judge notes that the plaintiff has re c eiv e d four extensions of time to serve the defendants. Although the plaintiff filed an a m e n d e d complaint on February 2, 2009 naming defendant Watson, he still named the

The Magistrate Judge's review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02. 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. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions of the Report 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 to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

1

" T h r ee Unknown Correctional Officers." The plaintiff appears to have served Sergeant W a ts o n , but he has not provided proof of service on the other unnamed defendants pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. As such, those defendants are subject to dismissal. T h is case will be three years old in November 2010. As the Magistrate Judge notes in his Report, it has been nearly two and one-half years since the plaintiff filed his original c o m p la in t and over a year since he filed his amended complaint. Despite numerous e x ten sio n s of time and failure to identify the unknown correctional officers, the Magistrate J u d g e recommends that the motion to dismiss (doc. # 43) as to these unnamed and unserved d e f en d a n ts be granted. The Report sets forth in detail the relevant facts and standards of law o n this matter, and the court incorporates such without a recitation. The parties were advised of their right to file objections to the Report and R e c o m m e n d a tio n , which was entered on the docket on April 13, 2010. However, neither p a rty filed any objections 2 to the Report within the time limits prescribed. A f t e r a careful review of the record, the applicable law, and the Report and R e c o m m e n d a tio n , the court finds the Magistrate Judge's recommendation proper and in c o rp o ra ted herein by reference. Accordingly, this action is dismissed as to defendants

Under 28 U.S.C. § 636(b)(1), the district court is obligated to conduct a de novo review of every portion of the Magistrate Judge's Report to which objections have been filed. The court reviews the Report 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). Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to timely file specific written objections to the Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985).

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Three Unknown Correctional Officers pursuant to Fed. R. Civ. P. 12(b)(4) and (5). The C le rk shall return this file to the Magistrate Judge for review of defendant Watson's motion f o r summary judgment. IT IS SO ORDERED.

M a y 6, 2010 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge