Perez-Perez v. Ray et al
ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant. This matter is dismissed without prejudice and without issuance and service of process. Signed by Honorable Cameron McGowan Currie on 3/27/2017.(cwhi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
C/A. No. 9:16-3574-CMC-BM
M.E. Ray, Warden of FCI Estill, S.C., as an
individual and in his official capacity; C.E.
Floyd, Warden of FCI Estill, S.C., as an
individual and in his official capacity; E. Rain
water, AHSA, as an individual and in her
official capacity; Dr. Jose Hernandez,
Medical Officer, as an individual and in his
official capacity; B. Parina, M.D. Medical
Officer, as an individual and in his official
capacity; Dr. Ross Rames, M.D. as an
individual and in his official capacity;
Carolyn V. Rickards, Regional Director, as an
individual and in his official capacity; Wendy
J. Roal, Administrator National Inmate
Appeals, as an individual and in his official
Opinion and Order
This matter is before the court on Plaintiff’s pro se complaint, filed in this court pursuant
to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(d), DSC, this
matter was referred to United States Magistrate Judge Bristow Marchant for pre-trial proceedings
and a Report and Recommendation (“Report”). On March 2, 2017 the Magistrate Judge issued a
Report recommending that Plaintiff’s complaint be dismissed without prejudice and without
issuance and service of process. ECF No. 20. The Magistrate Judge advised Plaintiff of the
procedures and requirements for filing objections to the Report and the serious consequences if
he failed to do so. Plaintiff filed objections to the Report on March 20, 2017. ECF No. 22.
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. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de
novo determination of any portion of the Report of the Magistrate Judge to which a specific
objection is made.
The court may accept, reject, or modify, in whole or in part, the
recommendation made by the Magistrate Judge or recommit the matter to the Magistrate Judge
with instructions. See 28 U.S.C. § 636(b).
After reviewing the record of this matter, the applicable law, the Report and
Recommendation of the Magistrate Judge, and Plaintiff’s objections, the court agrees with the
conclusions of the Magistrate Judge. Accordingly, the court adopts and incorporates the Report
and Recommendation by reference in this Order. Plaintiff alleges deliberate indifference to his
serious medical need; however, it is clear from the medical records submitted with his complaint
and objections to the Report that Plaintiff was seen often by medical staff for the very injury of
which he complains. Plaintiff notes his claim is not one for medical malpractice. Further,
Plaintiff’s complaint was filed outside the statute of limitations of three years for this action,
which is clear from the face of his complaint alleging injury from a fall in 1997. Nothing raised
in Plaintiff’s objections changes these conclusions. Therefore, this matter is dismissed without
prejudice and without issuance and service of process.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
March 27, 2017
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