Hart v. Doe et al

Filing 59

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; granting 36 Motion to Dismiss for Failure to State a Claim. This action is DISMISSED without prejudice. Signed by Honorable Mary G Lewis on 11/18/2013.(cwhi, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
Jerome Hart a/k/a Jerome V. Hart,

) Civil Action No.: 9:13-260-MGL
)
Plaintiff, )
)
vs.
)
ORDER AND OPINION
)
Lt. John Doe, Nurse Jane Doe and
)
Doctor NFN Miles,
)
)
Defendants. )
______________________________ )
Plaintiff Jerome Hart (“Plaintiff”), a federal prisoner proceeding pro se, initiated this
action pursuant to 42 U.S.C. § 1983 against Defendants Lt. John Doe, Nurse Jane Doe
(“Doe Defendants”) and Doctor NFN Miles (“Defendant Miles”) (“collectively Defendants”)
alleging violations of his constitutional rights. (ECF No. 1). In accordance with 28 U.S.C.
§ 636(b) and Local Rule 73.02, D.S.C., this action was referred to United States Magistrate
Judge Bristow Marchant for pretrial handling and a Report and Recommendation.
Magistrate Judge Marchant recommends granting Defendant Miles’ Motion to Dismiss or
in the alternative for Summary Judgment due to Plaintiff’s failure to exhaust his
administrative remedies. The Report and Recommendation sets forth in detail the relevant
facts and standards of law on this matter and the court incorporates them without recitation.
BACKGROUND
Plaintiff, who is incarcerated at the Federal Correctional Institution in Coleman,
Florida, filed this action against Defendants alleging deliberate indifference to his medical
needs arising out of falls he took at the Lexington County Detention Center in June 2011
and in November 2011.
A. Doe Defendants

Upon review of the record, Plaintiff has failed to show that the Doe Defendants were
ever properly served. In accordance with Federal Rule of Civil Procedure 4(m), a complaint
must be served on a Defendant within 120 days of being filed. Because such time has
elapsed since Plaintiff filed the instant action and the Doe Defendants have yet to be
served, the action against them should be dismissed.
B. Defendant Miles
On August 5, 2013, Defendant Miles filed a Motion to Dismiss (ECF No. 36), or,
alternatively, for Summary Judgment, arguing, in part, that Plaintiff failed to exhaust his
administrative remedies. Because Plaintiff is proceeding pro se, the court issued an order
pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975) on August 6, 2013 (ECF No.
37), advising Plaintiff that a Motion to Dismiss or for Summary Judgment had been filed
and of the possible consequences if he failed to adequately respond. Plaintiff’s response
to Defendant Miles’ Motion to Dismiss or for Summary Judgment was due on September
9, 2013.

After receiving no opposition to Defendant Miles’ Motion to Dismiss, on

September 13, 2013, the Magistrate Judge issued a Report and Recommendation
recommending that this action be dismissed due to Plaintiff’s failure to prosecute. (ECF
No. 40). On September 16, 2013, Plaintiff filed a Motion for an Extension of time (ECF No.
42) to file a response to the pending Motion to Dismiss or for Summary Judgment (ECF
No. 36). In an abundance of caution, the Magistrate Judge granted Plaintiff’s Motion for
an Extension of Time. (ECF No. 46). The Magistrate Judge advised Plaintiff that his
response was due on October 2, 2013. Id. On October 8, 2013, once more after having
not received any opposition to the Defendant’s Motion to Dismiss or for Summary
Judgment (ECF No. 36), the Magistrate Judge issued a second Report and

Recommendation. (ECF No. 51). The Magistrate Judge recommended that Defendant’s
motion to Dismiss or for Summary Judgment be granted due to Plaintiff’s failure to exhaust
his administrative remedies. Id. The parties were advised of their right to file objections
to the Report and Recommendation. (ECF No. 51 at 7).
On October 9, 2013, Plaintiff filed an untimely response in opposition to Defendant’s
Motion to Dismiss or for Summary Judgment. (ECF No. 54). Plaintiff’s response was filed
a month after his original response to Defendant’s Motion to Dismiss or for Summary
Judgment was due and seven days after his response was due pursuant to the extension
granted by Magistrate Judge Marchant. On October 17, 2013, Defendant Miles filed a
reply to Plaintiff’s response and argued that Plaintiff’s response should not be considered
due to its untimeliness. (ECF No. 55).
Objections to the Report and Recommendation (ECF No. 51) were due on October
25, 2013. On October 29, 2013, Plaintiff filed a Motion for an Extension of Time to file
objections to the Report and Recommendation. (ECF No. 56). Once again, out of an
abundance of caution and recognizing that Plaintiff is proceeding pro se, the court granted
Plaintiff’s Motion for an Extension of Time. In the Order granting Plaintiff an extension,
Plaintiff was specifically advised that the court would not grant any further extensions, and
the court would not consider any untimely response from Plaintiff. Objections to the Report
and Recommendation were due on November 15, 2013.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the court.
recommendation has no presumptive weight.

The

The responsibility to make a final

determination remains with the court. Mathews v. Weber, 423 U.S. 261, 270–71, 96 S.Ct.

549, 46 L.Ed.2d 483 (1976). The court is charged with making a de novo determination of
those portions of the Report and Recommendation 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 with instructions. 28 U.S.C. § 636(b)(1).
Plaintiff was advised of his right to file objections to the Report and
Recommendation. (ECF Nos. 51 & 57). However, Plaintiff has filed no objections and the
time for doing so has expired. In the absence of objections to the Magistrate Judge’s
Report and Recommendation, this Court is not required to provide an explanation for
adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir.1983).
Rather, “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) (quoting Fed.R.Civ.P. 72 and advisory committee's
note).
Here, because no objections have been filed, the court has reviewed the Magistrate
Judge’s findings and recommendations for clear error. Finding none, the court agrees with
the Magistrate Judge that the Plaintiff’s claims against Defendants are subject to dismissal.

CONCLUSION
After a careful review of the record, the applicable law, and the Report and
Recommendation, the court finds the Magistrate Judge’s recommendation to be proper.
The court agrees with the Magistrate Judge that Defendant Miles’ Motion to Dismiss or for
Summary Judgment should be granted. Accordingly, the court adopts the Magistrate

Judge’s Report and Recommendation (ECF No. 51) to the extent it is not inconsistent with
this Order and incorporates it herein.
IT IS THEREFORE ORDERED that Defendant Miles’ Motion to Dismiss is
GRANTED (ECF No. 36) and the Doe Defendants are DISMISSED SUA SPONTE. This
action is DISMISSED without prejudice.
IT IS SO ORDERED.
/s/Mary G. Lewis
United States District Judge
November 18, 2013
Spartanburg, South Carolina