Gary v. South Carolina Department of Corrections

Filing 15

ORDER ADOPTING 11 REPORT AND RECOMMENDATION and incorporating it herein by reference. The within action is dismissed without prejudice. Signed by Chief Judge Margaret B Seymour on 11/15/12. (kmca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Eugene Gee Gary, #231045,

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Plaintiff,
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vs.
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ORDER
South Carolina Depart. of Corrections,
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Defendants.
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____________________________________)
Plaintiff Eugene Gee Gary is an inmate in custody of the South Carolina Department of
Corrections. He currently is housed at Lieber Correctional Institution in Ridgeville, South Carolina.
Plaintiff, proceeding pro se, filed a complaint on October 15, 2012, alleging that he was subjected
to unconstitutional conditions of confinement. Plaintiff brings this action pursuant to 42 U.S.C. §
1983.
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred
to United States Magistrate Judge Jacquelyn D. Austin for pretrial handling. The Magistrate Judge
reviewed the complaint pursuant to the provisions of 28 U.S.C. §§ 1915(e) and 1915A. On October
23, 2012, the Magistrate Judge issued a Report and Recommendation in which she determined that
Defendant is entitled to Eleventh Amendment immunity. Accordingly, the Magistrate Judge
recommended that the complaint summarily dismissed. Plaintiff filed no objections to the Report
and Recommendation.
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight. The responsibility for making a final determination remains with this court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). This court may accept, reject, or modify, in whole
or in part, the findings or 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 the absence of a timely filed objection, a district court need not conduct a de
novo review, but instead must “only satisfy itself that there is no clear error on the face of the record
in order to accept the recommendation.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310,
315 (4th Cir. 2005).
The court has carefully reviewed the record and concurs in the recommendation of the
Magistrate Judge. The court adopts the Report and Recommendation and incorporates it herein by
reference. The within action is dismissed without prejudice.
IT IS SO ORDERED.

/s/ Margaret B. Seymour
Chief United States District Judge
Columbia, South Carolina
November 15, 2012

NOTICE OF RIGHT TO APPEAL
Plaintiff is hereby notified of the right to appeal this order
pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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