James v. Cotter et al

Filing 46

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; denying without prejudice 15 Motion for Summary Judgment. Signed by Chief Judge Terry L Wooten on 6/5/2015.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Michael D. James,

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Plaintiff,
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vs.
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Daniel Cotter, Perry CI Contraband Sgt.; )
D. Burcinski, Contraband Cpl.; S. Duffy, )
Administrative Captain, Perry CI,
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Defendants.
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______________________________________ )

C/A No.: 9:14-cv-04518-TLW-BM

ORDER

Plaintiff Michael D. James, an inmate proceeding pro se, originally filed this action in the
Greenville County Court of Common Pleas. (ECF No. 1). In his amended complaint, filed in
federal court after the case was removed from state court, Plaintiff alleges violation of his
constitutional rights pursuant to 42 U.S.C. § 1983. (ECF No. 19). This matter now comes before
this Court for review of the Report and Recommendation (“the Report”) filed on January 9,
2015, by Magistrate Judge Bristow Marchant (ECF No. 20) to whom this case was previously
assigned. In the Report, the Magistrate Judge recommends that the Court deny Plaintiff’s Motion
for Summary Judgment without prejudice as prematurely filed. Plaintiff filed objections to the
Report on January 22, 2015. (ECF No. 27).
The Court has reviewed the Report and the objections. In conducting this review, the
Court applies the following standard:
The magistrate judge makes only a recommendation to the Court, to which any
party may file written objections.... The Court is not bound by the
recommendation of the magistrate judge but, instead, retains responsibility for the
final determination. The Court is required to make a de novo determination of
those portions of the report or specified findings or recommendation as to which
an objection is made. However, the Court is not required to review, under a de
novo or any other standard, the factual or legal conclusions of the magistrate
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judge as to those portions of the report and recommendation to which no
objections are addressed. While the level of scrutiny entailed by the Court's
review of the Report thus depends on whether or not objections have been filed,
in either case the Court is free, after review, to accept, reject, or modify any of the
magistrate judge's findings or recommendations.
Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992)
(citations omitted).
In light of the standard set forth in Wallace, the Court has reviewed, de novo, the Report
and the objections. After careful review of the Report and objections thereto, the Court hereby
ACCEPTS the Report. The Plaintiff’s objections (ECF No. 27) are OVERRULED. For the
reasons stated in the Report, the Plaintiff’s Motion for Summary Judgment (ECF No. 15) is
DENIED without prejudice.
IT IS SO ORDERED.

s/Terry L. Wooten
Chief United States District Judge

June 5, 2015
Columbia, South Carolina

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