Gaddy v. Ward et al

Filing 81

ORDER RULING ON 32 Report and Recommendation that Defendant Donald Altman is dismissed as a party to this action. Signed by Honorable Joseph F Anderson, Jr on 6/4/13. (kmca)

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

Calvin L. Gaddy,
Plaintiff,
v.
Mr. Robert Ward, et al.,
Defendants.
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C/A No.: 8:12-3549-JFA-JDA

ORDER

The pro se plaintiff, Calvin L. Gaddy, brings this action pursuant to 42 U.S.C. § 1983
claiming violations of his constitutional rights by the defendants with regard to the process
and results of a prison disciplinary hearing. At the time the complaint was filed, the plaintiff
was incarcerated at the Perry Correctional Institution of the South Carolina Department of
Corrections.
The Magistrate Judge assigned to this action1 has prepared a Report and
Recommendation wherein she suggests that this court should dismiss defendant Donald
Altman who is a prisoner at PCI. The Report sets forth in detail the relevant facts and
standards of law on this matter, and the court incorporates such without a recitation and
without a hearing.

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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 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. 28 U.S.C. § 636(b)(1).

1

The plaintiff was advised of his right to file objections to the Report and
Recommendation which was docketed on February 20, 2013. The plaintiff filed an objection
memorandum which appears to restate the claims contained in his original complaint without
specifically addressing the Report and Recommendation. The court has conducted the
required de novo review of the objections and finds them to be without merit.
As the Magistrate Judge correctly notes, defendant Altman is a fellow inmate at the
Perry Correctional Institution and Altman has not acted under color of state law, thus he
should be summarily dismissed from the complaint. Moreover, plaintiff has failed to show
that Altman acted under color of state law as required by 42 U.S.C. § 1983.
After a careful review of the record, the applicable law, the Report and
Recommendation, and the objections thereto, the court finds the Magistrate Judge’s
recommendation to be proper and incorporates the Report herein by reference. Defendant
Donald Altman is dismissed as a party to this action.
The Clerk shall return this file to the Magistrate Judge for further proceedings.
IT IS SO ORDERED.

June 4, 2013
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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