McKinnedy v. Pate et al

Filing 32

ORDER RULING ON REPORT AND RECOMMENDATION 24 . This case is DISMISSED without prejudice and without issuance and service of process. Signed by Honorable G Ross Anderson, Jr on 10/1/2013. (kric, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION

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Plaintiff,
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v.
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Warden John R. Pate, Warden of
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Allendale Correctional Institution;
Mr. William R. Byars, Director of SCDC; )
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Mr. Dennis Patterson, Director of
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Operation;
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K. Newton, Asso. Warden;
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A. Jordan, Asso. Warden;
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R. Williams, DHO/Asso. Warden;
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W. Worrock, Major;
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R. Grimes, Captain;
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J. Rump, Lieutenant;
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M. Congo, Lieutenant;
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L. Morris, Lieutenant;
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T. Ramsey-Tyler, Lieutenant;
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C. Hartley, Lieutenant;
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Lieutenant Jenkins, Lieutenant of
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Contraband;
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Sergeant McDonaldson;
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Sgt. Behlin;
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P. River-Smith, Sgt.;
Sgt Cave;
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J. Dickerson, Cpl.;
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M. Walker, Officer;
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D. Ford, Officer;
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H. Freeman, Mailroom Div.;
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V. Grubbs, Postal Mailroom Director;
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V. Jones, Counsel Substitute;
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V. Black, Lieutenant Property Control;
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A. Jamison, Cpl. Property Control;
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P. Smith, Inmate Grievance C/IGC;
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A. Hallman, Bronc Chief Grievance;
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J. Simmons, Branch Chief Assistant;
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Lloyd Roberts, Chief Chaplain;
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C. Stokes, Chaplain;
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J. Porter, Chaplain;
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William C. McKinnedy, III, former
#256024, aka McKinney, McKennedy,

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C/A No.: 6:13-cv-01793-GRA

ORDER
(Written Opinion)

O. Shaheed, Muslim Chaplain;
T. Mutakabbir, Muslim Chaplain;
E. Rowe, DHO;
G. Dukes, Food Supervisor;
M. Fuller, Nutritionist;
P. Derrick, Head Nurse;
R. Jenkins, Lieutenant SMU;
D. Taratasky, Staff Attorney GCO;
Alan Wilson, Attorney General;
Nikki R. Haley, Governor of SC;
J. Carmichael, General Counsel;
M. McQueen, Law Librarian Edu. Bldg.;
Secretary Sanders, Warden Secretary
Assit.,

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Defendants.
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_________________________________ )

This matter comes before this Court for review of United States Magistrate
Judge Kevin F. McDonald’s Report and Recommendation made in accordance with
28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(d) DSC, and filed on August
14, 2013. ECF No. 24. Plaintiff William C. McKinnedy, III (“Plaintiff”), a former inmate
with the South Carolina Department of Corrections proceeding pro se and in forma
pauperis, commenced this action pursuant to 42 U.S.C. § 1983. ECF No. 1. Under
established local procedure in this judicial district, Magistrate Judge McDonald made
a careful review of the pro se complaint pursuant to the procedural provisions of 28
U.S.C. § 1915, 28 U.S.C. § 1915A, and the Prison Litigation Reform Act. ECF No.
24.

Magistrate Judge McDonald recommends that this Court summarily dismiss

Plaintiff’s Complaint without prejudice and without service of process. Id. For the
reasons discussed herein, this Court adopts the magistrate judge’s recommendation
in its entirety.

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Plaintiff brings this claim pro se. This Court is required to construe pro se
pleadings liberally. Such pleadings are held to a less stringent standard than those
drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). This
Court is charged with liberally construing a pleading filed by a pro se litigant to allow
for the development of a potentially meritorious claim. Boag v. MacDougall, 454 U.S.
364, 365 (1982). However, a court may not construct the plaintiff's legal arguments
for him, Small v. Endicott, 998 F.2d 411, 414 (7th Cir. 1993), nor is a district court
required to recognize “obscure or extravagant claims defying the most concerted
efforts to unravel them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1277 (4th Cir.
1985), cert. denied, 475 U.S. 1088 (1986).
Plaintiff brings this claim in forma pauperis under 28 U.S.C. § 1915, which
permits an indigent litigant to commence an action in federal court without prepaying
the administrative costs of proceeding with the lawsuit. To protect against possible
abuses of this privilege, the statute requires a district court to dismiss the case upon a
finding that the action “is frivolous or malicious,” “fails to state a claim on which relief
may be granted,” or “seeks monetary relief against a defendant who is immune from
such relief.” 28 U.S.C. § 1915(e)(2)(B).
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 this Court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). This Court is charged with making a de novo determination of those portions
of the Report and Recommendation to which specific objection is made, and this
Court may "accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). This Court
may also "receive further evidence or recommit the matter to the magistrate judge
with instructions." Id. In order for objections to be considered by a United States
District Judge, the objections must be timely filed and must specifically identify the
portions of the Report and Recommendation to which the party objects and the basis
for the objections. Fed. R. Civ. P. 72(b); see United States v. Schronce, 727 F.2d 91,
94 n.4 (4th Cir. 1984); Wright v. Collins, 766 F.2d 841, 845–47 nn.1–3 (4th Cir. 1985).
“Courts have . . . held de novo review to be unnecessary in . . . situations when a
party makes 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 specific objections to
the Report and Recommendation, this Court is not required to give any explanation
for adopting the recommendation.

Camby v. Davis, 718 F.2d 198, 199 (4th Cir.

1983).
The failure to file objections to the Report and Recommendation waives any
further right to appeal when the parties have been warned that they must object to
preserve appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); see also
Carter v. Pritchard, 34 F. App’x 108, 108 (4th Cir. 2002) (per curiam). In the present
case, both parties received a copy of the Report and Recommendation, which
contained a “Notice of Right to File Objections to Report and Recommendation.”
ECF No. 24. The Notice warned the parties that “[f]ailure to timely file specific written
objections . . . [results] in waiver of the right to appeal from a judgment of the District

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Court based upon such Recommendation.” Id. Neither party filed any objections to
the Report and Recommendation, and the time for filing such objections has lapsed.1
After a review of the record, this Court finds that the magistrate judge’s Report
and Recommendation accurately summarizes this case and the applicable law.
Accordingly, the Report and Recommendation is accepted and adopted in its entirety.
IT IS THEREFORE ORDERED that this case is DISMISSED without prejudice
and without issuance and service of process.
IT IS SO ORDERED.

October 1 , 2013
Anderson, South Carolina

1

The final day for objections to the Report and Recommendation was September 3, 2013. See ECF
No. 24. Plaintiff filed a Motion for Extension of Time asking for an additional forty-five (45) days to file
objections to the Report and Recommendation on September 3, 2013. ECF No. 27. This motion was
denied by this Court on September 27, 2013. ECF No. 30.

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