Long v. Tomarchio

Filing 45

ORDER RULING ON REPORT AND RECOMMENDATION 40 . The Motion for Summary Judgment filed by the Defendant (Dkt. No. 34) is GRANTED and that the Plaintiffs Motion for Summary Judgment (Dkt. No. 22) is DENIED. Signed by Honorable Timothy M Cain on 3/15/2013. (kric, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Jerome Long,
Plaintiff,
v.
Dr. Tomarchio, Medical Director,
Defendant.
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C/A No. 6:12-1974-TMC
ORDER

Plaintiff, Jerome Long (“Plaintiff”), a state prisoner proceeding pro se and in
forma pauperis, brings this action pursuant to 42 U.S.C. § 1983. In accordance with 28
U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(d), D.S.C., all pre-trial proceedings
were referred to a Magistrate Judge. On February 13, 2013, Magistrate Judge Kevin
F. McDonald issued a Report and Recommendation ("Report") recommending that the
Motion for Summary Judgment filed by the Defendant (Dkt. No. 34) be granted and that
the Motion for Summary Judgment filed by the Plaintiff (Dkt. No. 22) be denied. The
Magistrate Judge provided Plaintiff a notice advising him of his right to file objections to
the Report. (Dkt. No. 40 at 8).

Plaintiff filed objections to the Magistrate Judge's

Report on March 6, 2013. (Dkt. No. 42).
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 (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 with instructions. 28 U.S.C. § 636(b)(1).
The court is obligated to conduct a de novo review of every portion of the

Magistrate Judge’s report to which objections have been filed. Id. 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).
The Magistrate Judge recommended that the Motion for Summary filed by the
Defendant as set forth above be granted and that the Plaintiff’s Motion for Summary
Judgment be denied. As noted above, Plaintiff filed objections to the Report which the
Court has carefully reviewed. However, the Plaintiff’s objections provide no basis for
this court to deviate from the Magistrate Judge’s recommended disposition.

The

objections are non-specific, unrelated to the dispositive portions of the Report or merely
restate Plaintiff’s claims.
After a thorough review of the Report and the record, the court adopts the Report
(Dkt. No. 40) and incorporates it herein. It is therefore ORDERED that the Motion for
Summary Judgment filed by the Defendant (Dkt. No. 34) is GRANTED and that the
Plaintiff’s Motion for Summary Judgment (Dkt. No. 22) is DENIED.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
March 15, 2013
Anderson, South Carolina

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.