Guerry v. Stirling et al

Filing 77

ORDER RULING AND ADOPTING 49 REPORT AND RECOMMENDATION. Defendant's Motion to Dismiss, 44 , is DENIED. Signed by Honorable Sherri A. Lydon on 3/31/2021. (sgri)

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA Jacquelyn Guerry as Personal Representative of the Estate of Eddie Casey Jay Gaskins, Case No. 8:20-cv-01621-SAL-JDA Plaintiff, v. ORDER Bryan Stirling, Aaron Joyner, Dennis Patterson, Michael McCall, Joseph Stines, Edward Tisdale, Jr., Kenneth Sharp, Annie McCullough, Sam Ray, Arenda Thomas, Cynthia Petty, Michael Beedy, Raymond Johnson, Elsie Pressley, Chelsea Mingo, Yolanda Holmes, Venyke Smith, Clive Lopez Defendants. This matter is before the Court for review of the September 25, 2020 Report and Recommendation (“Report”) of United States Magistrate Judge Jacquelyn D. Austin, made in accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). [ECF No. 49]. In the Report, the Magistrate Judge recommends that Defendant Michael McCall’s motion to dismiss, ECF No. 44, be denied. [ECF No. 49 p.7]. No party filed objections to this Report, and the time to do so has passed. See [ECF No. 49]. 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 this Court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making a de novo determination of only those portions of the Report that have been specifically objected to, and the Court may accept, reject, or modify the Report, in whole or in part. 28 U.S.C. § 636(b)(1). In the absence of objections, the Court is not required to provide an explanation for 1 adopting the Report and 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) (citing Fed. R. Civ. P. 72 advisory committee’s note). After a thorough review of the Report, the applicable law, and the record of this case in accordance with the above standard, the Court finds no clear error, adopts the Report, and incorporates the Report by reference herein. Accordingly, Defendant’s Motion to Dismiss, ECF No. 44, is DENIED. IT IS SO ORDERED. /s/Sherri A. Lydon Sherri A. Lydon United States District Judge March 31, 2021 Florence, South Carolina 2

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