Opinion
C/A No. 9:06-440-CMC-GCK.
May 10, 2006
ORDER
This matter is before the court on Plaintiff's pro se amended complaint alleging a violation of his constitutional rights relating to an alleged foot injury.
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 George C. Kosko for pre-trial proceedings and a Report and Recommendation. On April 6, 2006, the Magistrate Judge issued a Report recommending that this case be dismissed without prejudice and without issuance and service of process for Plaintiff's failure to comply with the Order entered March 1, 2006. The Magistrate Judge advised Plaintiff of the procedures and requirements for filing objections to the Report and Recommendation and the serious consequences if he failed to do so. Plaintiff filed a reply to the Report on April 18, 2006, reiterating the allegations contained in the Complaint.
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 and Recommendation 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). The court reviews the Report and Recommendation only for clear error in the absence of an objection. See Diamond v. Colonial Life Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that "in the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.") (citation omitted).
After reviewing the record of this matter, the applicable law, the Report and Recommendation of the Magistrate Judge, and Plaintiff's reply, the court agrees that this case should be dismissed, yet not for the reasons indicated by the Report. Plaintiff has failed to state a claim rising to a constitutional violation. At most, Plaintiff's complaint sounds of medical negligence, which is not actionable under 42 U.S.C. § 1983. Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990) (in order for plaintiff to succeed on a medical indifference claim, treatment "must be so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness, . . . mere negligence or malpractice does not violate the Eighth Amendment.") In addition, Plaintiff, in asserting a violation of his Eighth Amendment rights, must allege acts or omissions sufficiently harmful to evidence deliberate and intentional indifference to his serious or life threatening medical needs. See Estelle v. Gamble, 429 U.S. 97, 107 (1976); Farmer v. Brennan, 511 U.S. 825, 837 (1994). Plaintiff's Complaint does not meet these standards.
IT IS THEREFORE ORDERED that this matter is dismissed without prejudice and without issuance and service of process.
IT IS SO ORDERED.