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Nesbitt v. Riley

United States District Court, District of South Carolina

May 1, 2015

Brian Keith Nesbitt, Plaintiff,
v.
Tim Riley, Warden; Bryan P. Stirling, Director of the Department of Corrections; Amy Spencer; Dr. J.R. Bearden; DHO Richard Turner; Laura Caldwell; Lt. Lawson, Safty; Admin Captain Nance; Gary Lane; Investigator Lane; Karen McMorris; Cap. Jennette Glen; Lt. Jason Webber; Major James Parris; Captain Cathy Duncan; Dr. T. Byrne, Defendants.

ORDER

Richard Mark Gergel United States District Court Judge

This matter is before the Court on the Report and Recommendation ("R&R") of the Magistrate Judge (Dkt. No. 77) recommending that this Court deny Plaintiffs Motions for a Preliminary Injunction and Temporary Restraining Order (Dkt, Nos. 35 and 50). The Court hereby adopts the R&R.

Plaintiff filed suit pursuant to 42 U.S.C. § 1983 alleging unconstitutional conditions of confinement and violations of his right to access to the courts. (Dkt. No. 26). In two motions presently before the Court, he seeks a transfer to a different institution and to receive medical treatment outside of the South Carolina Department of Corrections. As the R&R states, he has not established that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Plaintiff filed objections (Dkt. No. 86). However, the objections make general allegations that the Court should infer municipal liability through the showing of bad acts, that correctional medical services should be "comparable to service obtainable by the general public, " that his legal materials have been confiscated, and that he would like to be appointed counsel. None of these arguments deal with the applicable standard for preliminary relief.[1]

The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility for making a final determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court makes a de novo determination of those portions of the R&R to which specific objection is made and may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).

The Court has reviewed the R&R, the full administrative record in this matter, the relevant legal authorities, and Plaintiffs objections to the R&R. It hereby ADOPTS the R&R as the order of the Court and DISMISSES the Plaintiffs motions (Dkt. Nos. 35 and 50).

AND IT IS SO ORDERED.


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