Jenkins v. Smith et al, No. 1:2018cv00995 - Document 42 (D.S.C. 2019)

Court Description: OPINION & ORDER adopting the 38 Report and Recommendation, granting Defendants' 20 motion to dismiss and granting Jenkins' 40 motion to amend. Jenkins is permitted twenty-one (21) days from the date of this order to file an amended complaint asserting an FTCA claim against the United States. Ordered that this matter is referred to the magistrate judge for further proceedings. (Specific Document due by 3/25/2019.) Signed by Honorable Henry M. Herlong, Jr on 3/4/2019. (lbak)

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Jenkins v. Smith et al Doc. 42 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA AIKEN DIVISION Steve Jenkins, Plaintiff, vs. J. Smith, Case Manager, T. Jenkins, Case Manager, and Designation and Sentence Computation Center (DSCC), Defendants. ) ) ) ) ) ) ) ) ) ) ) ) C.A. No. 1:18-995-HMH-SVH OPINION & ORDER This matter is before the court with the Report and Recommendation of United States Magistrate Judge Shiva V. Hodges, made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 of the District of South Carolina.1 Steve Jenkins (“Jenkins”), a federal prisoner proceeding pro se, alleges violations of the Federal Tort Claims Act (“FTCA”), 28 U.S.C. 1346(b), and constitutional violations pursuant to Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against J. Smith, T. Jenkins, and the Designation and Sentence Computation Center (collectively “Defendants”). In her Report and Recommendation filed on February 14, 2019, Magistrate Judge Hodges recommends granting Defendants’ motion to dismiss and permitting Jenkins twenty-one days to file an amended complaint asserting an FTCA claim against the United States. (R&R 10-11, ECF No. 38.) 1 The recommendation has no presumptive weight, and the responsibility for making a final determination remains with the United States District Court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those portions of the Report and Recommendation to which 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 with instructions. 28 U.S.C. § 636(b)(1). Dockets.Justia.com Jenkins filed objections to the Report and Recommendation. (Objs., generally, ECF No. 41.) Objections to the Report and Recommendation must be specific. Failure to file specific objections constitutes a waiver of a party’s right to further judicial review, including appellate review, if the recommendation is accepted by the district judge. See United States v. Schronce, 727 F.2d 91, 94 & n.4 (4th Cir. 1984). In the absence of specific objections to the Report and Recommendation of the magistrate judge, this court is not required to give any explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Upon review, the court finds that Jenkins’ objections are non-specific, unrelated to the dispositive portions of the magistrate judge’s Report and Recommendation, or merely restate his claims. Accordingly, after review, the court finds that Jenkins’ objections are without merit. In addition, Jenkins filed a motion to amend his complaint. (Mot. Amend, ECF No. 40.) In light of the magistrate judge’s recommendation that Jenkins be permitted twenty-one days to amend his complaint in order to state an FTCA claim against the United States, the court grants Jenkins’ motion. Therefore, after a thorough review of the magistrate judge’s Report and the record in this case, the court adopts Magistrate Judge Hodges’ Report and Recommendation and incorporates it herein by reference. 2 It is therefore ORDERED that Defendants’ motion to dismiss, docket number 20, is granted. It is further ORDERED that Jenkins’ motion to amend, docket number 40, is granted, and Jenkins is permitted twenty-one (21) days from the date of this order to file an amended complaint asserting an FTCA claim against the United States. It is further ORDERED that this matter is referred to the magistrate judge for further proceedings. IT IS SO ORDERED. s/Henry M. Herlong, Jr. Senior United States District Judge Greenville, South Carolina March 4, 2019 NOTICE OF RIGHT TO APPEAL Plaintiff is hereby notified that he has the right to appeal this order within sixty (60) days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure. 3

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