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finding that plaintiff failed to exhaust his administrative remedies where "there is no evidence that Plaintiff . . . appealed the decision not to process the Step 1 grievance"
Summary of this case from Butler v. BessingerOpinion
No. 4:12-cv-138-RMG
08-27-2013
ORDER
This matter is before the Court on the Report and Recommendation ("R&R") of the Magistrate Judge recommending that the Court grant Defendants' motion for summary judgment. (Dkt. No. 74). For the reasons set forth below, the Court agrees with and adopts the R&R as the order of the Court.
Background
Plaintiff, proceeding pro se, filed this civil action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights during his incarceration by the South Carolina Department of Corrections at the Kershaw Correctional Institution. (Dkt. No. 1). Pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(d) DSC, this case was automatically referred to a Magistrate Judge for pretrial proceedings. On December 13, 2012, Defendants filed a motion for summary judgment. (Dkt. No. 61). On February 8, 2013, Plaintiff filed a response in opposition to the motion. (Dkt. No. 71). The Magistrate Judge then issued an R&R recommending the Court grant Defendants' motion for summary judgment. (Dkt. No. 74). Plaintiff failed to file timely objections to the R&R.
Legal Standard
The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility for making a final determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making a de novo determination of those portions of the R&R to which specific objection is made. Additionally, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). This Court may also "receive further evidence or recommit the matter to the magistrate judge with instructions." Id.
In reviewing these pleadings, the Court is mindful of Plaintiff s pro se status. This Court is charged with liberally construing the pleadings of a pro se litigant. See, e.g., De'Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003). The requirement of a liberal construction does not mean, however, that the Court can ignore a plaintiff's clear failure to allege facts that set forth a cognizable claim, or that a court must assume the existence of a genuine issue of material fact where none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012).
Discussion
After review of the record and the R&R, the Court finds that the Magistrate Judge applied sound legal principles to the facts of this case and therefore agrees with and adopts the R&R as the order of the Court. The Court agrees that Plaintiff has failed to create a genuine dispute of fact regarding whether Defendants used excessive force, were deliberately indifferent to a serious risk of harm, or retaliated against him while he was a prisoner at the Kershaw Correctional Institution. The Court therefore agrees that Defendants are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
Conclusion
As set forth above, the Court agrees with and adopts the R&R as the order of the Court. (Dkt. No. 74). Accordingly, the Court GRANTS Defendants' motion for summary judgment. (Dkt. No. 61).
AND IT IS SO ORDERED.
______________________
Richard Mark Gergel
United States District Court Judge
August 27, 2013
Charleston, South Carolina