United States District Court, D. South Carolina, Orangeburg Division
ORDER AND OPINION
J. MICHELLE CHILDS, District Judge.
This matter is now before the court upon the magistrate judge's Report and Recommendation ("Report") (ECF No. 73), filed February 14, 2014, recommending that the court summarily dismiss Plaintiff Bernard McFadden's ("Plaintiff") complaint as to Defendants Michael L. Fair and Boyd H. Parr. ( Id. at 1.) Plaintiff has been granted leave to proceed in forma pauperis under 28 U.S.C. § 1915. (ECF No. 9.) For the reasons stated herein, the court ACCEPTS the magistrate judge's Report and SUMMARILY DISMISSES Plaintiff's claims against Defendants Fair and Parr.
FACTUAL AND PROCEDURAL BACKGROUND
The court concludes upon its own careful review of the record that the factual and procedural summation in the magistrate judge's Report is accurate, and the court adopts this summary as its own. However, a brief recitation of the background in this case is warranted.
Plaintiff is incarcerated at the Kershaw Correctional Institution ("KCI"), a facility managed by the South Carolina Department of Corrections ("SCDC"). (ECF No. 1 at 2.) Plaintiff filed this action on August 23, 2013 (ECF No. 1), alleging that Defendants Marcia Fuller, John and Jane Does, Michael L. Fair, and Boyd H. Parr (collectively referred to as "Defendants") violated the Eighth Amendment by providing insufficient portions of food and drinks that did not yield the necessary vitamins or nutrients. ( Id. at 3.) Plaintiff alleges that malnutrition in the prison has resulted in loss of vision, headaches, bleeding gums, weight loss, decaying teeth, and loss of hair. ( Id. )
Plaintiff claims that Defendant Fair has been unresponsive to letters informing Defendant Fair that SCDC allegedly, falsely advertises as beef, meals made from chicken offal. ( Id. at 4.) Plaintiff also states that Defendant Fair did not assist Plaintiff's efforts to examine SCDC financial records to determine whether funds used to purchase meat products have been misappropriated. ( Id. at 4-5.) Plaintiff contends that Defendant Parr has also received letters about the purported false advertisement of the beef dishes. ( Id. at 3.) Plaintiff argues that Defendant Parr should be held liable for not inspecting the situation or providing information on the effect that offal would have on the prisoners' health. ( Id. at 5.)
On February 14, 2014, the magistrate judge issued the Report, which recommended summary dismissal of Plaintiff's claims against Defendants Fair and Parr. (ECF No. 73.) In the Report, the magistrate judge explained that Defendant Fair is a South Carolina State Senator who is a member of the Legislative Audit Council. ( Id. at 3 n.1.) The magistrate judge found that the Legislative Audit Council is authorized to execute only performance audits and not financial audits of state agencies. (ECF No. 73 at 5 (citing S.C. Code Ann. §§ 2-15-10 to -120 (2005)).)
The magistrate judge also stated that citizens are not permitted to directly request an audit but instead audits must be requested by members of the General Assembly. ( Id. ) The Report concluded that Plaintiff's suit contested actions or inactions involving Defendant Fair's legislative activities and for that reason, Plaintiff's suit against Defendant Fair is barred by Defendant Fair's absolute legislative immunity. ( Id. at 4-5 (citing Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998)).)
The Report further explained that Defendant Parr, a veterinarian, is the director of Clemson University's Livestock-Poultry Health Extension. (ECF No. 73 at 3; Dr. Boyd Parr Biography, (last visited July 22, 2014), http://www.clemson.edu/public/lph/bios/parr.html.) The Report states that Clemson's Livestock-Poultry Health Extension includes the South Carolina Meat and Poultry Inspection Department. (ECF No. 73 at 6.) The magistrate judge concluded that the Meat and Poultry Inspection Department "has no legal responsibility for the alleged falsification on SCDC/KCI menus of beef dishes." ( Id. at 6.) The magistrate judge found instead that the Inspection Department oversees "the inspection and labeling of poultry products by manufacturers (persons who engage in the business of slaughtering or processing poultry), renderers, and brokers." ( Id. (citing S.C. Code Ann. §§ 47-4-10 to -170 (1987); S.C. Code §§ 47-17-10 to -150 (1987); S.C. Code §§ 47-19-10 to -180 (1987); S.C. Code §§ 47-22-10 to -80 (1987)).) The magistrate judge stated that since Plaintiff did not allege that the offal is mislabeled or uninspected but instead that SCDC falsely represents its offal dishes as beef dishes, Plaintiff has not stated a claim for which relief can be granted against Defendant Parr. (ECF No. 73 at 6.)
Plaintiff filed Objections to the Report ("Objections") on February 28, 2014. (ECF No. 81.) In his Objections, Plaintiff reasserts his position that Defendant Fair has ignored his request concerning the alleged misappropriation of funds with respect to the purchase of SCDC meat products. (ECF No. 81 at 4; ECF No. 81-2 at 2-3.) Plaintiff asks that the court find that Defendant Fair has a duty to investigate SCDC financial records and that Defendant Fair has failed in performing this duty. (ECF No. 81-2 at 3 (citing S.C. Code Ann. 2-15-90 (2005)).) Plaintiff also asserts that he is alleging that Defendant Parr (and by extension, the South Carolina Meat and Poultry Inspection Department) has not inspected the chicken offal used by the prison. (ECF No. 81 at 6; ECF No. 81-2 at 3.) Plaintiff contends that while the United States Department of Agriculture ("USDA") may have inspected "the whole chicken", the USDA has not inspected the chicken offal used by the prison. (ECF No. 81-2 at 3.)
STANDARD OF REVIEW
The magistrate judge's Report and Recommendation is made in accordance with 28 U.S.C. § 636(b)(1) 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 this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objections are made, and the court may accept, reject, or modify, in whole or in part, the magistrate judge's recommendation or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1). Failure to file specific objections constitutes a waiver of a party's right to further judicial review, including appellate review, if the recommendation is accepted by the district judge. See United States v. Schronce, 727 F.2d 91, 94 & n.4 (4th Cir. 1984). In the absence of specific objections to the magistrate judge's Report, this court is not required to give any explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
As Plaintiff is a pro se litigant, the court is required to liberally construe his arguments. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The court addresses those arguments that, under the mandated liberal construction, it has reasonably found to ...