Tucker v. Helbig

Filing 45

ORDER Adopting 41 Report and Recommendation. Accordingly, Defendant's 24 Motion to Dismiss, Motion for Summary Judgment is GRANTED. Signed by Honorable Richard M Gergel on 12/4/13. (kmca)

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

RICHARD PRICE TUCKER,
Plaintiff,
vs.
RUSSELL HELBIG, Chaplain, in his
individual and official capacity,
Defendants.

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NO.8:13-cv-00401-RMG
ORDER

This matter comes before the Court on the Report and Recommendation (R & R) of the
Magistrate Judge (Dkt. No. 41), recommending that Defendant's Motion to Dismiss or, in the
alternative, for Summary Judgment be granted. For the reasons stated below, the Court
ADOPTS the R & R in full. Accordingly, Defendant's Motion for Summary Judgment i (Dkt.
No. 24) is GRANTED.

Back&round
Plaintiff is incarcerated at the Federal Correctional Institution Williamsburg in Salters,
South Carolina and alleges that the Defendant violated his constitutional rights in various ways.

(See Dkt. No.1.) The Magistrate Judge recommended that summary judgment be entered in
favor of Defendant because Plaintiff failed to exhaust his administrative remedies. (Dkt. No. 4l.)
Plaintiff filed an initial grievance with the Warden concerning the claims at issue here and then

i Because the Magistrate Judge considered and this Court considers evidence submitted in
support of and in response to Defendant's motion, the Court considers it as a motion for
summary judgment, rather than a motion to dismiss.

appealed the Warden's response to the Regional Director. (Dkt. No. 24-1 at,-r,-r 5-6.) However,
Plaintiffs appeal of the Regional Director's response to the Office of General Counsel (the third
and final level of administrative review) was rejected and returned to him because he did not
submit the proper number of continuation pages and copies with his appeal. (Id. at ,-r 7.) Plaintiff
was advised that he could resubmit his appeal in proper fonn within 15 days of the rejection
notice, but he failed to do so. (Id. at,-r,-r 7-8.) Because Plaintiff did not resubmit his appeal after
being notified of the deficiency, the Magistrate Judge found that Plaintiff failed to exhaust his
administrative remedies. (Dkt. No. 41 at 14-15 (listing cases).)
Plaintiff filed an "Answer and Return" to the R & R, but did not object to any particular
portion of the R & R or to any particular findings by the Magistrate Judge. (See Dkt. No. 43.)
Instead, Plaintiff asserted a variety of frivolous claims completely lacking in merit, including that
the Federal District Court is a "Foreign State"; that United States courts lack jurisdiction over
any claims brought against individuals; and that the Magistrate Judge violated criminal statutes
by issuing her Report and Recommendation. (See id.)

Le&al Standard
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility to make a final detennination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court may "accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate." 28
U.S.C. § 636(b)(1). This Court is charged with making a de novo detennination of those
portions of the R & R or specified proposed findings or recommendations to which objection is
made. Diamond v. Colonial Life & Ace. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting 28
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U.S.C. § 636(b)(1)); accord Fed. R. Civ. P. 72(b). As to portions of the R & R to which no
specific objection has been made, this Court "must 'only satisfy itself that there is no clear error
on the face of the record in order to accept the recommendation.'" Id. (quoting Fed. R. Civ. P 72
advisory committee note). Moreover, in the absence of specific objections to the R & R, the
Court need not give any explanation for adopting the Magistrate Judge's analysis and
recommendation. See Camby v. Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).

Discussion
The Court has carefully reviewed the pleadings, the parties' briefing, and the R & R, and
concludes that the Magistrate Judge correctly applied the relevant law to the operative facts in
this matter. It is undisputed that, after being notified of the deficiencies in his appeal and the
deadline to correct these deficiencies, Plaintiff failed to resubmit his appeal. Plaintiff does not
allege and has not put forward evidence that this failure was due to anything other than his own
choice not to resubmit the appeal. Thus, he has failed to exhaust his administrative remedies.

See, e.g., Randolph v. Redfearn, No. 2:05-cv-2249, 2006 WL 1687449 at *2 (D.S.C. June 13,
2006) (dismissing claim for failure to exhaust administrative remedies because "Plaintiff only
needed to re-submit his grievance in proper form to have his claim redressed").
The Court, therefore, ADOPTS the Magistrate Judge's Report and Recommendation
(Dkt. No. 41) as the order of this Court. Accordingly, Defendant's Motion for Summary
Judgment (Dkt. No. 24) is GRANTED.

IT IS SO ORDERED.

Richard Mark Gergel
United States District Judge

51-,

2013
December
Charleston, South Carolina
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