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explaining that a defendant can only pursue dismissal on Rule 12(b) grounds after answering "if the defendant/movant's previously-filed answer expressly includes the lack of personal jurisdiction as an affirmative defense"
Summary of this case from Tate v. SmithOpinion
C.A. No. 9:07-1131-HMH-GCK.
October 9, 2007
OPINION ORDER
This matter is before the court with the Report and Recommendation of United States Magistrate Judge George C. Kosko, made in accordance with 28 U.S.C. § 636(b)(1) (2006) and Local Civil Rule 73.02 of the District of South Carolina. Mack Neil Myers ("Myers"), a state prisoner proceeding pro se, alleges that he was subjected to cruel and unusual punishment and deliberate indifference to his serious medical needs in violation of the Eighth Amendment. In his Report and Recommendation, Magistrate Judge Kosko recommends (1) denying the Defendants' motion to dismiss, (2) denying Myers' motion for a physical and mental examination, (3) denying Myers' motion for summary judgment, (4) granting Myers' motion to amend, (5) granting the Defendants' motion for summary judgment, and (6) imposing a strike on Myers pursuant to 28 U.S.C. § 1915(e)(2) and (g).
Myers filed objections to the Report and Recommendation. 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 Myers' objections are non-specific, unrelated to the dispositive portions of the Magistrate Judge's Report and Recommendation, or merely restate his claims. Therefore, after a thorough review of the Magistrate Judge's Report and the record in this case, the court adopts Magistrate Judge Kosko's Report and Recommendation.
Therefore, it is
ORDERED that the Defendants' motion to dismiss, docket no. 9, is denied. It is further
ORDERED that Myers' motion for a physical and mental examination, docket no. 20, is denied. It is further
ORDERED that Myers' motion for summary judgment, docket no. 21, is denied. It is further
ORDERED that Myers' motion to amend, docket no. 64, is granted. It is further
ORDERED that the Defendants' motion for summary judgment, docket no. 66, is granted. It is further
ORDERED that this dismissal is deemed a strike under 28 U.S.C. § 1915(e)(2) and (g).
IT IS SO ORDERED.