FULLER v. FCI MANCHESTER HEALTH SERVICE et al

Filing 127

ORDER RULING ON REPORT AND RECOMMENDATION 118 . It is ORDERED that the Defendants motion to dismiss, docket number 93, is granted. Signed by Honorable Henry M Herlong, Jr on 7/27/2017. (kric, )

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

Darell Andre Fuller,
Plaintiff,
vs.
Dr. Jose Serrano, Clinical Director,
FCI Edgefield Health Service,
Dr. V. Loventh, a/k/a Dr. V. Loranth,
Clinical Director, FCI Williamsburg
Health Service, and Dr. L. Berrios,
Clinical Director FCI Bennettsville
Health Service,
Defendants.

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

OPINION & ORDER

This matter is before the court on 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.

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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).

On January 9, 2017, the Defendants filed a motion to dismiss. (Mot. Dismiss, ECF
No. 93.) The magistrate judge issued Roseboro2 orders on January 9, 2017, and February 13,
2017, directing Fuller to respond to the Defendants’ motion to dismiss. Fuller did not file a
response within the time to respond. Based on Fuller’s failure to respond, Magistrate Judge
McDonald recommended dismissing Fuller’s complaint for lack of prosecution pursuant to
Rule 41(b) of the Federal Rules of Civil Procedure. (Apr. 25, 2017 R&R 3, ECF No. 106.) On
May 5, 2017, Fuller filed objections, which the court construed as an attempt to respond to the
motion to dismiss. (May 5, 2017 Objs., ECF No. 110.) Subsequently, on May 10, 2017, the
court declined to adopt the Report and ordered Fuller to respond to the motion to dismiss.
(May 10, 2017 Order, ECF No. 113.) Fuller responded on May 31, 2017. (Resp. Opp’n Mot.
Dismiss, ECF No. 116.) On June 12, 2017, Magistrate Judge McDonald issued a second Report
and recommended dismissing Fuller’s complaint as barred by the applicable statute of
limitations. (Jun. 12, 2017 R&R 11, ECF No. 118.)
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).

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Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).
2

Upon review, the court finds that Fuller’s objections are non-specific, unrelated to the
dispositive portions of the magistrate judge’s Report and Recommendation, or merely restate his
claims. Accordingly, after review, the court finds that Fuller’s objections are without merit.
Therefore, after a thorough review of the magistrate judge’s Report and the record in this case,
the court adopts Magistrate Judge McDonald’s Report and Recommendation and incorporates it
herein by reference.
It is therefore
ORDERED that Defendants’ motion to dismiss, docket number 93, is granted.
IT IS SO ORDERED.

s/Henry M. Herlong, Jr.
Senior United States District Judge
Greenville, South Carolina
July 27, 2017

NOTICE OF RIGHT TO APPEAL
Plaintiff is hereby notified that he has the right to appeal this order within sixty (60)
days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate
Procedure.

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