McClellan v. Director of the South Carolina Department of Corrections et al

Filing 20

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant. This action is dismissed without prejudiceand without issuance and service of process. Signed by Honorable Cameron McGowan Currie on 12/19/2011.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
James Anderson McClellan,

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Plaintiff,
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v.
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Director of the South Carolina Department )
of Corrections, in his individual and
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official capacity; Warden Wayne C.
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McCabe; Mark Gathers,
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Defendants.
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___________________________________ )

C/A NO. 9:11-2871-CMC-BM

OPINION and ORDER

This matter is before the court on Plaintiff’s pro se complaint, filed in this court pursuant to
42 U.S.C. § 1983.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(d), DSC, this
matter was referred to United States Magistrate Judge Bristow Marchant for pre-trial proceedings
and a Report and Recommendation (“Report”). On November 1, 2011, the Magistrate Judge issued
a Report recommending that the complaint be dismissed without prejudice and without issuance and
service of process. The Magistrate Judge advised Plaintiff of the procedures and requirements for
filing objections to the Report and the serious consequences if he failed to do so. After receiving
an extension of time, Plaintiff filed timely objections to the Report on December 16, 2011.
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.
See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of any portion of the Report of the Magistrate Judge to which a specific objection is
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made. The court may accept, reject, or modify, in whole or in part, the recommendation made by
the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28
U.S.C. § 636(b).
After reviewing the record of this matter, the applicable law, Plaintiff’s objections, and the
Report and Recommendation of the Magistrate Judge, the court agrees with the conclusions of the
Magistrate Judge. Accordingly, the court adopts and incorporates the Report and Recommendation
by reference in this Order.
Plaintiff’s objections contend that “[a]ll cases of authority mentioned throughout the Report
and Recommendation [have] no merit whatsoever [r]egarding the Plaintiff’s right to work” in prison.
Obj. at 2 (ECF No. 18, filed Dec. 16, 2011). However, Plaintiff fails to support this conclusory
assertion. Additionally, Plaintiff asks that this court review a policy of the South Carolina
Department of Corrections (SCDC) purportedly related to his complaint, arguing that “Lieber’s
Administration is not in compliance with their own policy . . . .” Id. at 1. However, even if the
SCDC were not following one of its policies or procedures, this allegation, standing alone, does not
amount to a constitutional violation. See United States v. Caceres, 440 U.S. 741, 751-52 (1978);
see also Riccio v. Cnty. of Fairfax, Va., 907 F.2d 1459, 1469 (4th Cir.1990) (if state law grants more
procedural rights than the Constitution requires, a state’s failure to abide by that law is not a federal
due process issue); Keeler v. Pea, 782 F. Supp. 42, 44 (D.S.C.1992) (violations of prison policies
which fail to reach the level of a constitutional violation are not actionable under § 1983).
Accordingly, for the reasons noted in the Report, this action is dismissed without prejudice
and without issuance and service of process.
IT IS SO ORDERED.

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s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE

Columbia, South Carolina
December 19, 2011

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