FULLER v. FCI MANCHESTER HEALTH SERVICE et al

Filing 113

ORDER RULING ON 106 REPORT AND RECOMMENDATION. The court declines to adopt the magistrate judge's Report and Recommendation. It is ORDERED that Fuller file a response to Defendant's 93 Motion to Dismiss within 21 days of this order. It is further ORDERED that Fuller's 111 Motion to appoint counsel is denied. It is further ORDERED that this case is remanded to the magistrate judge for further proceedings. Signed by Honorable Henry M Herlong, Jr on 5/10/17. (kmca)

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

Darell Andre Fuller,
Plaintiff,
vs.
Dr. Jose Serrano, Dr. V. Loventh,
and Dr. L. Berrios,
Defendants.

)
)
)
)
)
)
)
)
)
)

C.A. No. 6:16-993-HMH-KFM

OPINION & ORDER

This matter is before the court on Darell Andre Fuller’s (“Fuller”) motion to appoint
counsel and the Report and Recommendation of United States Magistrate Judge Kevin F.
McDonald, made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 of the
District of South Carolina.1 Fuller, proceeding pro se, filed a civil rights action pursuant to
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Fuller alleges that he received inadequate medical care while he was incarcerated at six federal
correctional institutions.
On January 9, 2017, the Defendants filed a motion to dismiss. (Mot. Dismiss, ECF
No. 93.) The magistrate judge issued Roseboro orders on January 9, 2017, and February 13,
2017, directing Fuller to respond to the Defendants’ motion to dismiss. (Jan. 9, 2017 Order, ECF

1

The recommendation has no presumptive weight, and the responsibility for making a
final determination remains with the United States District Court. See 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 and Recommendation 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).

No. 92); (Feb. 13, 2017 Order, ECF No. 95.) On March 8, 2017, Fuller filed a motion for an
extension of time to respond. (Mot. Extension, ECF No. 99). Magistrate Judge McDonald
granted Fuller’s motion on March 22, 2017. (Mar. 22, 2017 Order, ECF No. 102.) Fuller did not
file a response within the extended time to respond. Based on Fuller’s failure to respond,
Magistrate Judge McDonald recommends dismissing Fuller’s complaint for lack of prosecution
pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. (R&R 3, ECF No. 106.)
Fuller filed objections to the Report and Recommendation. Objections to the Report and
Recommendation must be specific. Failure to file specific objections constitutes a waiver of a
party’s right to further judicial review, including appellate review, if the recommendation is
accepted by the district judge. See United States v. Schronce, 727 F.2d 91, 94 & n.4 (4th Cir.
1984). In the absence of specific objections to the Report and Recommendation of the magistrate
judge, this court is not required to give any explanation for adopting the recommendation. See
Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
Upon review, Fuller makes no specific objections, but attempts to address the merits of
the Defendants’ motion to dismiss. (Objs. 1-2, ECF No. 110.) Additionally, Fuller states that
“[t]hese defendants keep filing motion[s] to dismiss on the same argument.” (Id. at 2, ECF
No. 110.) The court notes that, although Fuller initially filed a single complaint against all
defendants at the six federal correctional institutions, the Honorable Noel L. Hillman, United
States District Judge for the District of New Jersey, severed Fuller’s claims and transferred each
claim to the proper jurisdiction for each defendant. (Mar. 28, 2016 Order, ECF No. 43.) Based
on the foregoing, Fuller appears to have confused the defendants in related suits with the
Defendants in this case. Because Fuller’s response indicates that he wishes to continue with this
case and respond to the Defendants’ motion to dismiss, the court will allow Fuller a 21-day
2

extension from the date of this order to file a response to the Defendants’ motion to dismiss.
This is the final extension that will be granted to respond to the Defendants’ motion to dismiss.
Fuller has also filed a second motion to appoint counsel. (Sec. Mot. Appoint Counsel,
ECF No. 111.) Magistrate Judge McDonald denied Fuller’s first motion to appoint counsel on
March 22, 2017. (Mar. 22, 2017 Order, ECF No. 103.) For the reasons set forth in the
magistrate judge’s order, the instant motion to appoint counsel is denied.
Therefore, after a thorough review of the Report and Recommendation and the record in
this case, the court declines to adopt the magistrate judge’s Report and Recommendation.
It is therefore
ORDERED that Fuller file a response to Defendant’s motion to dismiss within 21 days
of this order. It is further
ORDERED that Fuller’s motion to appoint counsel, docket number 111, is denied. It is
further
ORDERED that this case is remanded to the magistrate judge for further proceedings.
IT IS SO ORDERED.
s/Henry M. Herlong, Jr.
Senior United States District Judge
Greenville, South Carolina
May 10, 2017

3