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finding that a correctional officer is within his authority to command an inmate to "sit down" and "shut up" in order to maintain order, and that the officer may use force to get the inmate to comply with the command
Summary of this case from Brown v. RaimondoOpinion
CIVIL ACTION NO. 9:07-3060-HFF-BM.
September 29, 2008
ORDER
This case was filed as a 42 U.S.C. § 1983 action. Plaintiff is proceeding pro se. The matter is before the Court for review of the Report and Recommendation (Report) of the United States Magistrate Judge suggesting that Defendants' motions to dismiss and/or for summary judgment be granted, and that this case be dismissed, with prejudice. The Report was made in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of South Carolina.
The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
The Magistrate Judge filed the Report on August 12, 2008, and the Clerk of Court entered Plaintiff's "Statement of the Case" on the same date. Subsequently, on September 4, 2008, the Clerk of Court entered Plaintiff's objections to the Report. At the direction of the Court, Defendants filed replies to the objections on September 15, 2008, and September 27, 2008. The Court has exhaustively reviewed Plaintiff's three-page "Statement of the Case" and his forty-page objection submission, but finds the arguments contained therein to be without merit.
Thus, after a thorough review of the Report and the record in this case pursuant to the standard set forth above, the Court overrules Plaintiff's objections, adopts the Report to the extent that it does not contradict this Order, and incorporates it herein.
Accordingly, it is the judgment of this Court that Defendants' motions to dismiss and/or for summary judgment be GRANTED as to all of Plaintiff's federal claims, and that this case be DISMISSED, with prejudice, as to all of Plaintiff's federal claims. To the extent that Plaintiff has raised any state causes of action, however, those claims are DISMISSED, without prejudice, so that Plaintiff may pursue those claims in state court if he wishes to do so.
In their motion for summary judgment, Defendants ask that the Court to assess a strike against Plaintiff pursuant to 28 U.S.C. § 1915. Inasmuch as the Fourth Circuit has suggested that such an action at the summary judgment stage is inappropriate, the Court declines Defendants' invitation. Pressley v. Rutledge, 82 Fed.Appx. 857, 858, 2003 WL 22999339, at *1 (4th Cir. 2003) ("Because . . . [the Plaintiff's] action was dismissed upon a grant of summary judgment to the Defendants, we vacate the district court's order to the extent it assessed a strike pursuant to 28 U.S.C. § 1915(g) (2000).").
Moreover, inasmuch as Plaintiff's submissions can be construed to contain any appeals of the Magistrate Judge's pretrial rulings concerning the appointment of counsel, discovery issues, or any other matter, the rulings of the Magistrate Judge are AFFIRMED.