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finding that because plaintiff failed to allege any injury, there was no genuine issue of fact as to whether constitutionally excessive force was used against the plaintiff
Summary of this case from West v. ByarsOpinion
Civil Action No.4:11-272-MGL
05-23-2013
Ike T. Rutledge, # 300604, a/k/a Ike Terrell Rutledge, formerly # 1375888, Plaintiff, v. Officer Porter, Defendants.
OPINION AND ORDER
Plaintiff Ike T. Rutledge ("Plaintiff"), proceeding pro se, brought this action pursuant to Title 42, United States Code, Section 1983. (ECF No. 1.) In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B), D.S.C., this matter was referred to United States Magistrate Judge Thomas E. Rogers, III, for pre-trial handling and a Report and Recommendation. On September 10, 2012, Defendants filed a motion for summary judgment. (ECF No. 47.) Since Plaintiff is pro se in this matter, the Court entered an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) on September 11, 2012, advising Plaintiff of the importance of a dispositive motion and of the need for him to file an adequate response. (ECF No. 48.) Plaintiff did not file a response, and a Report and Recommendation was issued by Judge Rogers recommending that this action be dismissed for failure to prosecute (ECF No. 53) and was adopted in an Order issued on November 8, 2012. (ECF No. 57.) Thereafter, Plaintiff filed a Motion for Reconsideration (ECF No. 60), and an Order granting that motion and vacating the November 8, 2012, Order was issued by this Court on November 20, 2012. (ECF No. 62). This case was reopened, and Plaintiff filed his opposition to the motion for summary judgment on December 27, 2012. (ECF No. 67.)
On April 29, 2013, Magistrate Judge Rogers issued a Report recommending that Defendant's motion for summary judgment be granted and this case be dismissed. (ECF No. 76.) 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. (ECF No. 76-1.) Plaintiff filed no objections and the time for doing so expired on May 16, 2013.
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 motion and response, the record, and the Report and Recommendation of the Magistrate Judge, the Court finds no clear error. Accordingly, the Court adopts and incorporates the Report and Recommendation (ECF No. 76) by reference into this order. It is therefore ORDERED that Defendants' motion for summary judgment is GRANTED and this case is dismissed.
IT IS SO ORDERED.
Mary G. Lewis
United States District Judge
Spartanburg, South Carolina
May 23, 2013