Rivera v. Byars et al

Filing 21

ORDER ACCEPTING 10 REPORT AND RECOMMENDATION that Plaintiff's 1 Complaint is DISMISSED without prejudice and without issuance and service of process. Signed by Honorable J Michelle Childs on 2/12/13. (kmca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Kenneth Syncere Rivera, #318979,
a/k/a Kenneth Rivera,

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Plaintiff,
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v.
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Agency Director, William R. Byars, Jr.;
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SCDC Nutritionist, Marcia Fuller;
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Head Kitchen Supervisor, Evelyn Barber; )
Warden Robert Stevenson, III,
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Defendants.
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___________________________________ )

Civil Action No.: 8:12-cv-02318-JMC

ORDER AND OPINION

This matter is before the court for review of the Magistrate Judge's Report and
Recommendation (“Report”) [Dkt. No. 10], filed on September 10, 2012, recommending that
Plaintiff’s Complaint [Dkt. No. 1] be dismissed without prejudice and without issuance and service
of process. Plaintiff brought this action seeking relief pursuant to Title 42 U.S.C. § 1983. The
Report sets forth in detail the relevant facts and legal standards on this matter which the court
incorporates herein without a recitation.
The Magistrate Judge’s Report and Recommendation is made in accordance with 28 U.S.C.
§ 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. “The Court is not bound
by the recommendation of the magistrate judge but, instead, retains responsibility for the final
determination.” Wallace v. Hous. Auth., 791 F. Supp. 137, 138 (D.S.C. 1992) (citing Matthews v.
Weber, 423 U.S. 261, 271 (1976)). The court is charged with making a de novo determination of
those portions of the Report and Recommendation to which specific objections are made, and the

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court may accept, reject, or modify, in whole or in part, the Magistrate Judge’s recommendation or
recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
Plaintiff was advised of his right to file objections to the Report [Dkt. No. 10 at 8]. Plaintiff
timely filed objections to the Magistrate Judge’s Report and Recommendation. [Dkt. No. 12].
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 Magistrate Judge’s Report and
Recommendation, 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).
Therefore, after a thorough review of the Magistrate Judge’s Report and Recommendation,
Plaintiff objections, and the record in this case, the court ACCEPTS the Report and
Recommendation [Dkt. No. 10]. For the reasons articulated by the Magistrate Judge, it is therefore
ORDERED that Plaintiff’s Complaint [Dkt. No. 1] is DISMISSED without prejudice and without
issuance and service of process.
IT IS SO ORDERED.

United States District Judge
February 12, 2013
Greenville, South Carolina

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