Fleming v. Medical Nurse et al

Filing 50

ORDER affirming 35 Report and Recommendation; denying without prejudice 22 Motion to Dismiss. Plaintiff shall have 30 days to identify, in writing, the individual nurse against whom he is asserting claims in this lawsuit. Signed by Honorable David C Norton on 9/8/2014.(eric, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA James A. Fleming, ) ) Plaintiff, ) ) vs. ) ) Medical Nurse, SCDC; William Brown, ) Officer SCDC; E. Tyler, Officer SCDC; ) Bernard McKie, Warden SCDC; and Robert ) Ward, Acting Director, in their individual ) and official capacities, ) ) Defendants. ) ____________________________________) C/A No. 9:13-cv-3377 DCN BM ORDER The above referenced case is before this court upon the magistrate judge's recommendation that defendant Medical Nurse’s motion to dismiss be denied without prejudice. This court is charged with conducting a de novo review of any portion of the magistrate judge's report to which a specific objection is registered, and may accept, reject, or modify, in whole or in part, the recommendations contained in that report. 28 U.S.C. § 636(b)(1). However, absent prompt objection by a dissatisfied party, it appears that Congress did not intend for the district court to review the factual and legal conclusions of the magistrate judge. Thomas v Arn, 474 U.S. 140 (1985). Additionally, any party who fails to file timely, written objections to the magistrate judge's report pursuant to 28 U.S.C. § 636(b)(1) waives the right to raise those objections at the appellate court level. United States v. Schronce, 727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S. 1208 (1984 ).1 No objections 1 In Wright v. Collins, 766 F.2d 841 (4th Cir. 1985), the court held "that a pro se litigant must receive fair notification of the consequences of failure to object to a magistrate judge's report before such a procedural default will result in waiver of the right to appeal. The notice have been filed to the magistrate judge’s report and recommendation. A de novo review of the record indicates that the magistrate judge's report accurately summarizes this case and the applicable law. Accordingly, the magistrate judge’s report and recommendation is AFFIRMED, and defendant Medical Nurse’s motion to dismiss is DENIED without prejudice. IT IS FURTHER ORDERED that plaintiff be given an additional thirty (30) days to identify, in writing, the individual Nurse against whom he is asserting claims in this lawsuit. If he does so, the court will then issue such additional orders as are necessary for the prosecution of this case. If he does not do so, then defendant Medical Nurse as set forth in the caption will be dismissed as a party defendant in this case. AND IT IS SO ORDERED. David C. Norton United States District Judge September 8, 2014 Charleston, South Carolina NOTICE OF RIGHT TO APPEAL The parties are hereby notified that any right to appeal this Order is governed by Rules 3 and 4 of the Federal Rules of Appellate Procedure. must be 'sufficiently understandable to one in appellant's circumstances fairly to appraise him of what is required.'" Id. at 846. Plaintiff was advised in a clear manner that his objections had to be filed within ten (10) days, and he received notice of the consequences at the appellate level of his failure to object to the magistrate judge's report.

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