Brown v. Miller et al, No. 2:2010cv01025 - Document 60 (D.S.C. 2011)
Court Description: ORDER and OPINION granting 31 Motion for Summary Judgment. Defendants motion for summary judgment is granted and this matter is dismissed withoutprejudice for failure to exhaust administrative remedies. Signed by Honorable Cameron McGowan Currie on 5/2/11.(hhil, )
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Brown v. Miller et al Doc. 60 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION Mario Brown, #301990, ) ) Plaintiff, ) ) v. ) ) Capt. NFN Miller; Capt. NFN Tinch; ) Lt. NFN Lasley; Officer NFN Sewell; ) Nurse NFN Ryan; Lt. Hunter, ) ) Defendants. ) ___________________________________ ) C/A NO. 2:10-1025-CMC-BHH OPINION and ORDER This matter is before the court on Plaintiff’s pro se complaint, filed in this court pursuant to 42 U.S.C. § 1983. 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 Bruce Howe Hendricks for pre-trial proceedings and a Report and Recommendation (“Report”). On February 17, 2011, the Magistrate Judge issued a Report recommending that this matter be dismissed with prejudice due to Plaintiff’s failure to prosecute this action. On February 24, 2011, Plaintiff filed a motion for appointment of counsel, and on March 1, 2011, this court received Plaintiff’s objections to the Report. On March 7, 2011, this court gave Plaintiff the additional opportunity to respond to Defendants’ summary judgment motion. On March 22, 2011, Plaintiff responded to Defendants’ summary judgment motion, seeking that this matter be dismissed without prejudice “to file again once his administrative remedies [have] been exhausted.” Resp. at 1 (Dkt. #58, filed Mar. 22, 2011). 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. 1 Dockets.Justia.com 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 motion and objections, the court declines to adopt the Report of the Magistrate Judge. Defendants’ motion for summary judgment is granted and this matter is dismissed without prejudice for failure to exhaust administrative remedies. See Bryant v. Rich, 530 F.3d 1368, 1375 n.11 (11th Cir. 2008) (noting that district court’s dismissal without prejudice on summary judgment motion proper where “neither party has evidenced that administrative remedies at [the correctional facility] are absolutely time barred or otherwise clearly infeasible.”). IT IS SO ORDERED. s/ Cameron McGowan Currie CAMERON MCGOWAN CURRIE UNITED STATES DISTRICT JUDGE Columbia, South Carolina May 2, 2011 2
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