McKenzie v. Raines et al

Filing 112

ORDER ADOPTING 104 Report and Recommendations; GRANTING 31 Motion for Summary Judgment, filed by Ofc Sealy, Lt Raines, Lt McGhee, Wanda Young, Ofc Von Muitis; GRANTING 59 Motion for Summary Judgment filed by William R By ars, Jr; RENDERING AS MOOT 98 Motion for Reconsideration filed by Leroy Alvin McKenzie; DENYING 110 Motion for Reconsideration, Motion for Miscellaneous Relief filed by Leroy Alvin McKenzie; DENYING 108 Motion to Strike filed by Leroy Alvin McKenzie. Signed by Honorable Timothy M Cain on 2/23/2012. (mbro, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Leroy Alvin McKenzie

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Plaintiff,
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v.
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Lt. Raines, SCDC; Ofc. Von Muitis, SCDC;
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Ofc. Sealy, SCDC; Lt. McGahee, SCDC;
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Ofc. Wanda Young, SCDC; William R. Byars, Jr., )
Director SCDC,
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Individually and in their official capacities, )
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Defendants.
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__________________________________________)

CA No. 6:11-559-TMC-KFM

ORDER

Leroy Alvin McKenzie (McKenzie) filed this action against the defendants under the
Americans with Disability Act (ADA), 42 U.S.C. §§ 12131–12165 and the Rehabilitation Act, 29
U.S.C. § 794(a). (Dkt. Nos. 1, 40.) This matter is before the court for review of the Report and
Recommendation (Report) of the United States magistrate judge made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 of the District of South Carolina. (Dkt. No. 104.) 1
The Report recommends granting the defendants' motions for summary judgment. (Dkt. Nos. 31,
59.) The court adopts the Report and grants the motions for summary judgment.
The Report sets forth in detail the relevant facts and legal standards on this matter, and the
court incorporates the magistrate judge's Report herein without a recitation. The magistrate judge
1

The magistrate judge's recommendation has no presumptive weight, and the responsibility
for making a final determination remains with the United States District Court. Mathews v. Weber,
423 U.S. 261, 270 (1976). The court is charged with making a de novo determination of those
portions of the Report to which 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 with
instructions. 28 U.S.C. § 636(b)(1).

filed his Report on January 19, 2012. (Dkt. No. 104.) In the Report, the magistrate judge
recommended finding that the defendants did not violate either the ADA or the Rehabilitation Act.
McKenzie was advised of his right to file objections to the Report, and he timely filed objections
on February 1, 2012. (Dkt. No. 107.)2 In his objections, McKenzie challenges the magistrate
judge's jurisdiction over his case, given this court's previous order addressing other motions. (Dkt.
No. 102.) However, as stated above, pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02
of the District of South Carolina, all pretrial matters in cases involving pro se litigants are referred
to a United States Magistrate Judge for consideration. The magistrate judge may then make a
recommendation to the district court, but the responsibility for making a final determination
remains with the district court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The district court and
magistrate judge followed these procedures as required. Accordingly, the court finds that the
magistrate judge properly exercised jurisdiction in filing the Report.
As to the merits of the Report, McKenzie failed to file specific objections. As such, the
court adopts the magistrate judge's recommendation. See Diamond v. Colonial Life & Acc. 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") (internal quotations
omitted); Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983) (stating that in the absence of specific
objection, this court is not required to provide an explanation for adopting the recommendation).3
2

McKenzie's document filed February 1, 2012 was docketed by the clerk's office as both his
objections and a motion to strike. (Dkt. Nos. 107, 108.) Accordingly, the court will address both
filings in this order.
3

Furthermore, failure to file specific written objections to the Report results in a party's
waiver of the right to appeal from the judgment of the District Court based upon such
recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins,

The court also notes that McKenzie filed a document titled "Motion for Reconsideration"
addressing the court's January 9, 2012 order. (Dkt. No. 110.) The court declines to reconsider its
order and denies the motion for reconsideration. 4 Motions to reconsider are not expressly
contemplated by the Federal Rules of Civil Procedure. To the extent that the motion could be
considered a Rule 59 motion to alter or amend the judgment, the motion is untimely, as it was
dated February 8, 2012. Rule 59(e), Fed. R. Civ. P. Further, a review of the motion reflects that it
does not meet the standard set forth in Hutchinson v. Staton, 994 F.2d 1076 (4th Cir. 1993) and Hill
v. Braxton, 277 F.3d 701 (4th Cir. 2002). The court is unable to discern any material fact or
principal of law that was overlooked or disregarded in the January 9, 2012 order. Therefore, the
motion for reconsideration is denied.
After a thorough review of the Report and the record in this case, the court adopts the
Report and incorporates it herein. (Dkt. No. 104.) It is therefore ORDERED that the defendants'
motions for summary judgment (Dkt. Nos. 31, 59) are GRANTED. The plaintiff's motion to strike
(Dkt. No. 108) and motion for reconsideration (Dkt. No. 110) are DENIED. Further, the plaintiff's
earlier motion for reconsideration is rendered MOOT. (Dkt. No. 98.)
IT IS SO ORDERED.

s/Timothy M. Cain
Timothy M. Cain
United States District Judge
Greenville, South Carolina
February 23, 2012
766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
4
To the extent that McKenzie's "Motion for Reconsideration" could somehow be construed
as objections to the Report (Dkt. No. 104), even though it addresses the court's earlier order (Dkt.
No. 102), the document was filed untimely. Objections to the Report were due by February 6,
2012. The document was signed by McKenzie and notarized on February 8, 2012 and received by
the mail room at Lieber Correctional Institution that same day.

NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and 4 of
the Federal Rules of Appellate Procedure.