Spears v. South Carolina Department of Corrections et al

Filing 88

ORDER ACCEPTING REPORTS AND RECOMMENDATIONS for 67 & 85 Reports and Recommendations. It is therefore ORDERED that Defendants Janice L. Montgomery, K. Tayla, Robin Elerby, A. Brown, Leon Johnson, Michael Swartz, Ms. Brown , Ann Hallman, and Silvia Roberts are DISMISSED from the case pursuant to Plaintiff's requested amendment. Plaintiff's 64 Motion to Amend is DENIED in all other respects. However, Plaintiff's 74 Motion to Amend as to paragraphs 106 , 129, and 130 are GRANTED, but his request to amend paragraph 122 is DENIED. Finally, Plaintiff's 44 Motion to Dismiss is hereby rendered MOOT as to the above listed Defendants. Signed by Honorable J Michelle Childs on 7/27/12. (kmca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Phillip Lee Spears, Jr.,

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Plaintiff,
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v.
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South Carolina Department of
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Corrections, et al.,
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Defendants.
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____________________________________)

Civil Action No. 6:11-cv-03175-JMC

ORDER

This matter is before the court for review of the Magistrate Judge's Report and
Recommendation (“Report”), [Doc. 67], filed on May 25, 2012, recommending that Plaintiff’s
Motion to Amend [Doc. 64] be granted to the extent it requests dismissal of claims against
Defendants Janice L. Montgomery, K. Tayla, Robin Elerby, A. Brown, Leon Johnson, Michael
Swartz, Ms. Brown, Ann Hallman, and Silvia Roberts and that Plaintiff’s Motion to Amend be
denied in all other regards. Also before the court is the Magistrate Judge’s Report [Doc. 85], filed
June 21, 2012, recommending dismissal of the same defendants, but allowing specific amendments
to Plaintiff’s Amended Complaint. Plaintiff brought this action seeking relief pursuant to Title 42
U.S.C. §1983. The Reports set forth in detail the relevant facts and legal standards on these matters
which the court incorporates herein without a recitation.
The Magistrate Judge's Reports are made in accordance with 28 U.S.C. § 636(b)(1) and Local
Civil Rule 73.02 for the District of South Carolina.

The Magistrate Judge makes only a

recommendation to this court. The recommendation has no presumptive weight. The responsibility
to make a final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71
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(1976). The court is charged with making a de novo determination of those portions of the Report
to which specific objections are made, and the court may accept, reject, or modify, in whole or in
part, the Magistrate Judge's recommendation or recommit the matter with instructions. See 28 U.S.C.
§ 636(b)(1).
Plaintiff was advised of his right to file objections to the Reports [Doc. 67 at 3 and Doc. 85
at 5]. However, Plaintiff filed no objections to the Reports.
In the absence of objections to the Magistrate Judge's Reports, this court is not required to
provide an explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199
(4th Cir. 1983). Rather, "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) (quoting Fed. R. Civ. P. 72 advisory committee's note). 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, 766 F.2d 841 (4th Cir. 1985); United States
v. Schronce, 727 F.2d 91 (4th Cir. 1984).
After a thorough review of the Reports and Recommendations and the record in this case,
the court ACCEPTS the Magistrate Judge’s Reports and Recommendations. [Docs. 67 and 85]. It
is therefore ORDERED that Defendants Janice L. Montgomery, K. Tayla, Robin Elerby, A. Brown,
Leon Johnson, Michael Swartz, Ms. Brown, Ann Hallman, and Silvia Roberts are DISMISSED
from the case pursuant to Plaintiff’s requested amendment. Plaintiff’s Motion to Amend [Doc. 64]
is DENIED in all other respects. However, Plaintiff’s Motion to Amend [Doc. 74] as to paragraphs
106, 129, and 130 are GRANTED, but his request to amend paragraph 122 is DENIED. Finally,
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Plaintiff’s Motion to Dismiss [Doc. 44] is hereby rendered MOOT as to the above listed Defendants.

IT IS SO ORDERED.

United States District Judge
Greenville, South Carolina
July 27, 2012.

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