Lunsford v. Jacobs et al

Filing 123

ORDER granting 98 Motion for Summary Judgment; denying 102 Motion for Summary Judgment; granting 104 Motion to Dismiss for Failure to State a Claim; granting 104 Motion for Summary Judgment; denying 108 Motion for Summa ry Judgment; affirming 120 Report and Recommendation. It is further ordered that plaintiff's state court claims are dismissed without prejudice thereby allowing plaintiff to refile his state law claims in state court if he so chooses. Signed by Honorable David C Norton on 3/7/2017.(eric, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

Michael Andre Lunsford,

)
)
Plaintiff,
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)
vs.
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Dr. Theodolph Jacobs; Barry Wiessglass; )
J. Al Cannon; Chief Beatty; Major T. Smith; )
Paul Graft; Mitch Lucas; Nurse NFN
)
Phillips; Nurse NFN Brown; and Nurse
)
NFN Hallabugh,
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Defendants.
)
____________________________________)

C/A No.: 9:15-cv-4533 DCN
ORDER

The above referenced case is before this court upon the magistrate judge's recommendation that plaintiff’s motions for summary judgment be denied, defendants’ motions for
summary judgment be granted with respect to plaintiff’s federal claims and those claims be
dismissed with prejudice, and plaintiff’s remaining state law causes of actions be dismissed
without prejudice which will allow plaintiff to refile his state law claims in state court if he
chooses to do so.
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
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, plaintiff’s motions for summary judgment are DENIED,
and defendants’ motions for summary judgment with respect to plaintiff’s federal claims are
GRANTED, and those claims are DISMISSED with prejudice.
IT IS FURTHER ORDERED that plaintiff’s remaining state law causes of actions
are DISMISSED without prejudice, thereby allowing plaintiff to refile his state law claims in
state court, if he chooses to do so.
AND IT IS SO ORDERED.

David C. Norton
United States District Judge
March 7, 2017
Charleston, South Carolina

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
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.

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.