Summary
adopting Report and Recommendation finding that fear of retaliation did not excuse the exhaustion requirement
Summary of this case from McCrea v. S.C. Dep't of Corr.Opinion
C/A No. 0:14-cv-3244 DCN
09-19-2014
Charles Edward Thomas, Plaintiff, v. South Carolina Department of Corrections, Medical Division, Financial Division; Jon Ozmint; Prison Director Former, in their individual and official capacities, Defendants.
ORDER
The above referenced case is before this court upon the magistrate judge's recommendation that the case be dismissed without prejudice and without service of process. It was further recommended that the motion for a temporary restraining order be denied.
This court is charged with conducting a de novo review of any portion of the magistrate judge's report to which a specific objection is registered, and may accept, reject, or modify, in whole or in part, the recommendations contained in that report. 28 U.S.C. § 636(b)(1). However, absent prompt objection by a dissatisfied party, it appears that Congress did not intend for the district court to review the factual and legal conclusions of the magistrate judge. Thomas v Arn, 474 U.S. 140 (1985). Additionally, any party who fails to file timely, written objections to the magistrate judge's report pursuant to 28 U.S.C. § 636(b)(1) waives the right to raise those objections at the appellate court level. United States v. Schronce, 727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S. 1208 (1984 ). Objections to the magistrate judge's report and
In Wright v. Collins, 766 F.2d 841 (4th Cir. 1985), the court held "that a pro se litigant must receive fair notification of the consequences of failure to object to a magistrate judge's report before such a procedural default will result in waiver of the right to appeal. The notice must be 'sufficiently understandable to one in appellant's circumstances fairly to appraise him of what is required.'" Id. at 846. Plaintiff was advised in a clear manner that his objections had to be filed within ten (10) days, and he received notice of the consequences at the appellate level of his failure to object to the magistrate judge's report.
recommendation were timely filed by plaintiff on September 3, 2014.
A de novo review of the record indicates that the magistrate judge's report accurately summarizes this case and the applicable law. Accordingly, the magistrate judge's Report and Recommendation is AFFIRMED, the complaint is DISMISSED without prejudice and without issuance and service of process, and the motion for a temporary restraining order is DENIED.
AND IT IS SO ORDERED.
/s/_________
David C. Norton
United States District Judge
September 19, 2014
Charleston, South Carolina
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified that any right to appeal this Order is governed by Rules 3 and 4 of the Federal Rules of Appellate Procedure