Poe v. McFadden et al

Filing 42

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; denying 31 Motion for Summary Judgment; granting 36 Motion for Summary Judgment. This action is DISMISSED WITHOUT PREJUDICE for Plaintiff's failure to exhaust administrative remedies. Signed by Honorable Richard M Gergel on 7/14/2015.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA L:·.~:'

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lOIS JUL ! Lt P I: 4b
Richard Keith Poe, #29873A

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Plaintiff,

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vs.

No. 9: 14-cv-3225-RMG

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ORDER

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AlW Roland McFadden, and Colnita Hooks, )
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Defendants.

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This matter comes before the Court on the Report and Recommendation (R & R) of the
Magistrate Judge, (Dkt. No. 40), recommending that the Court deny Plaintiffs motion for
summary judgment, (Dkt. No. 31), and grant Defendants' motion for summary judgment, (Dkt.
No. 36). Plaintiff has not filed any objections to the R & R. For the reasons stated below, the
Court ADOPTS the R & R, DENIES Plaintiffs motion and GRANTS Defendants' motion.

I. Legal Standard
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. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court may "accept, reject, or
modity, in whole or in part, the findings or recommendations made by the magistrate." 28
U.S.C. § 636(b)(l). This Court is charged with making a de novo determination ofthose
portions of the R & R to which specific objection is made.
Here, however, because no objection has been made, this Court "must 'only satisty itself
that there is no clear error on the face of the record in order to accept the recommendation.'"

Diamond v. Colonial Life & Ace. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (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 198,200 (4th Cir. 1983).
II. Discussion

The undisputed facts on the record before the Court is that (1) Plaintiff filed a Step I
Grievance on July 15,2014, which was returned to Plaintiff on July 21,2014, for failure to attach
a Request to Staff Member Form (the required informal grievance process before a formal
grievance can be filed), (2) Plaintiff then submitted a Request to Staff Member Form to
Defendant McFadden on July 23,2014, to which McFadden responded within the time period
allowed under prison policy, and (3) Plaintiff never filed another Step I grievance after receiving
McFadden's response and never filed a Step II grievance. Therefore, Plaintiff has failed to
exhaust his administrative remedies, and dismissal is appropriate. See Childress v. Pettiford, No.
4:08-cv-l001, 2010 WL 412547 at

* 2 (D.S.C. Jan. 27, 2010) (granting motion to dismiss for

failure to exhaust administrative remedies where Plaintiff was informed of "how to comply with
the administrative remedy process ... but failed to do so").
Therefore, the Court ADOPTS in full the Magistrate Judge's Report and
Recommendation (Dkt. No. 40) as an order ofthis Court. Accordingly, Plaintiff's motion for
summary judgment (Dkt. No. 31) is DENIED, Defendants' Motion for Summary Judgment (Dkt.
No. 36) is GRANTED, and this action is DISMISSED WITHOUT PREJUDICE for
Plaintiff s failure to exhaust administrative remedies.
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AND IT IS SO ORDERED.

~ergel

United States District Judge
July ~,2015
Charleston, South Carolina

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