United States District Court, D. South Carolina, Florence Division
ORDER AND OPINION
MICHELLE CHILDS, District Judge.
Plaintiff David Gillyard, Jr., ("Plaintiff") filed this pro se action pursuant to 42 U.S.C. § 1983. Plaintiff alleges deliberate indifference and deliberate indifference to a serious medical need in violation of the Eighth and Fourteenth Amendments of the United States Constitution by Defendants Allendale Correctional Institution, South Carolina Department of Corrections, John R. Pate, Ms. Derrick, William Byars, D. Patterson, P. Smith, K. Newton, W. Worrock, R. Grimes, S.R. Behlin, H. Rich, J. Bartley, L. Morris, and Dr. Byrne (collectively "Defendants"). (ECF Nos. 1, 17.)
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, the matter was referred to United States Magistrate Judge Thomas E. Rogers, III, for pre-trial handling. On February 21, 2013, the Magistrate Judge issued a Report and Recommendation ("Report") recommending the court summarily dismiss the action. (ECF No. 24.) This review considers Plaintiff's Objections to Magistrate's Report and Recommendation ("Objections"), filed March 6, 2013. (ECF No. 26.) For the reasons set forth herein, the court ACCEPTS the Magistrate Judge's Report. The court thereby DISMISSES this action (ECF Nos. 1, 17) without prejudice and without issuance and service of process.
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
The facts are discussed in the Report. ( See ECF No. 24.) The court concludes, upon its own careful review of the record, that the Magistrate Judge's factual summation is accurate and incorporates it by reference. The court will only recite herein facts pertinent to the analysis of Plaintiff's Objections.
Plaintiff, an inmate at Allendale Correctional Institution within the South Carolina Department of Corrections, alleges that on May 23, 2012, while on the way to take a shower, he slipped on some water from a leak and injured his back and wrist. (ECF No. 1 at 3.) On October 24, 2012, Plaintiff filed his complaint against Defendants Pate, Derrick, and Byrne, seeking "proper medical treatment" and "proper compensation for [Plaintiff's] pain and suffering." (ECF No. 1 at 5.) Plaintiff amended his complaint on December 14, 2012, adding the remaining Defendants and seeking "injunction or declaratory judgments for defendants to pay [Plaintiff's] medical bills and for them to have [Plaintiff] sent to a specialist" and "to be compensated monetarially [ sic ] for the claims and violations of the 8th and 14th Amends of the U.S. Const., deliberate indifference, medical malpractice, gross negligence, and for the amount of twohundread [ sic ] and fifty-thousand dollars for each defendant." (ECF No. 17 at 5.)
On February 21, 2013, the Magistrate Judge issued the Report recommending the court summarily dismiss the action without prejudice and without issuance and service of process. (ECF No. 24.) As an initial matter, the Magistrate Judge found that Plaintiff's case is barred because he filed his complaint before fully exhausting his administrative remedies, as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). ( Id. at 4-5.) Further, the Magistrate Judge found that the complaint is subject to summary dismissal on other grounds. First, the Magistrate Judge found that suit against the South Carolina Department of Corrections is barred under the Eleventh Amendment. ( Id. at 5.) In addition, the Magistrate Judge noted that the Allendale Correctional Institution could not be sued, as it is not a "person" under § 1983. ( Id. at 6.) For the remaining Defendants, the Magistrate Judge found that Plaintiff has failed to demonstrate deliberate indifference to Plaintiff's safety or, in the case of Defendants Derrick and Byrne, a deliberate indifference to Plaintiff's medical needs. ( Id. at 7-8.) Additionally, the Magistrate Judge noted that claims of negligence and medical malpractice are not cognizable under § 1983. ( Id. at 8.) Finally, the Magistrate Judge found that Plaintiff's claims against Defendants Smith and Pate for denying Plaintiff's grievances are also not cognizable under § 1983, as inmates have no constitutionally protected right to a grievance procedure. ( Id. at 8-9.)
Plaintiff timely filed his Objections on March 6, 2013. (ECF No. 26.)
II. LEGAL STANDARD AND ANALYSIS
The Magistrate Judge's Report 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 Matthews v. Weber, 423 U.S. 261, 270-71 (1976). This court is charged with making a de novo determination of those portions of the Report 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).
Objections to a Report and Recommendation must specifically identify portions of the Report and the basis for those objections. Fed.R.Civ.P. 72(b). "[I]n 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.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 316 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note). Failure to timely file specific written objections to a Report will result in a waiver of the right to appeal from an Order from the court based upon the Report. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 155 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). If the plaintiff fails to properly object because the objections lack the requisite specificity, then de novo review by the court is not required.
Under 28 U.S.C. § 1915, an indigent litigant may file a lawsuit in federal court without prepaying the administrative costs. To prevent litigants from abusing this privilege, a district court may dismiss the case upon a finding that the action is frivolous or malicious or that it fails to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). A meritless claim may be dismissed sua sponte under 28 U.S.C. § 1915(e)(2)(B). See Neitzke v. Williams, 490 U.S. 319, 327 (1989); Allison v. Kyle, 66 F.3d 71, 73 (5th Cir. 1995).
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 state a claim. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999).
In his Objections, Plaintiff acknowledges he has not yet exhausted his administrative remedies, stating "his intention to refile this suit against Defendants Byrne and Derrick once he has exhausted his grievance when receiving step 2." (ECF No. 26 at 8 (emphasis added).) In a letter to the court dated June 19, 2013, Plaintiff noted he has "new information about the delay in response to my step 2 grievance, " however, he does not allege the grievance process had been exhausted at ...