Christian v. McCabe et al

Filing 19

ORDER RULING ON 11 REPORT AND RECOMMENDATION and incorporating it herein. Accordingly, this action is summarily dismissed without prejudice as the plaintiff has not exhausted his administrative remedies. Plaintiff's 17 motion to appoint counsel is denied. Signed by Honorable Joseph F Anderson, Jr on 9/18/12. (kmca)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA

Samuel Christian,

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Plaintiff,
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v.
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Wayne McCabe; James Blackwell; and
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Ladson Derosett,
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Defendants.
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______________________________________ )

C/A No. 8:12-880-JFA-JDA

ORDER

The pro se plaintiff, Samuel Christian, brings this action pursuant to 42 U.S.C. § 1983,
apparently alleging a violation of his due process rights at a prison disciplinary hearing
regarding an escape charge. He also contends that the defendants were deliberately
indifferent to his medical needs and seeks monetary damages.
The Magistrate Judge assigned to this action1 has prepared a Report and
Recommendation and opines that the plaintiff has failed to exhaust his administrative
remedies and that the complaint should be summarily dismissed under 28 U.S.C. §
1915(e)(2)(B). The Report sets forth in detail the relevant facts and standards of law on this
matter, and the court incorporates such without a recitation.
The plaintiff was notified of his right to file objections to the Report and

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The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil
Rule 73.02. 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 the court. Mathews
v. Weber, 423 U.S. 261 (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, and the court may accept, reject,
or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the
Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1).

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Recommendation. The plaintiff filed timely objections to the Report.
As an initial matter, the Magistrate Judge notes that the plaintiff indicated on his
complaint that he did not exhaust his administrative remedies, thus the Magistrate Judge
recommends dismissal without prejudice.
The plaintiff objects to the Magistrate Judge’s Report asserting that he did prepare a
step one grievance which the Warden denied. He contends that he then completed a step two
grievance which he has not received back from the Warden. While he indicates the case
numbers of the grievance forms, the plaintiff does not provide a copy in support of his
assertion that he has exhausted his remedies. Moreover, it appears that the exhaustion
procedures are incomplete as he has not received a response to his step two grievance. The
Magistrate Judge explains the exhaustion procedure in her Report and Recommendation.
After carefully reviewing the applicable laws, the record in this case, the Report and
Recommendation, and the objections thereto, this court finds the Magistrate Judge’s
recommendation fairly and accurately summarizes the facts and applies the correct principles
of law. The Report is incorporated herein by reference.
Accordingly, this action is summarily dismissed without prejudice as the plaintiff has
not exhausted his administrative remedies. Plaintiff’s motion to appoint counsel (ECF No.
17) is denied.
IT IS SO ORDERED.

September 18, 2012
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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