United States District Court, D. South Carolina, Charleston Division
RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE
matter is before the Court on the Report and Recommendation
of the Magistrate Judge, recommending that this case be
summarily dismissed without prejudice and without service of
process. For the reasons set forth below, the Court adopts
the Report and Recommendation and dismisses this action
alleges that on June 2, 2015, inmates flooded the wing where
he was housed at PCI and that Defendants injured his right
hand when they handcuffed him and removed him from his cell
to clean the water in his cell. (Dkt. No. 1 at 3.) Plaintiff
further alleges Defendants stripped him down to his boxers
and took all his property, including his mattress, for three
days. (Id. at 5.) Plaintiff states that he filed a
Step 1 Inmate Grievance Form and a Step 2 Inmate Grievance
Form, but that his Step 2 grievance has not been
answered. (Id. at 2, 6.) In this action,
Plaintiff seeks declaratory relief and monetary damages for
claims of cruel and unusual punishment, excessive force, and
violation of due process rights. (Id. at 2, 9.) The
Magistrate Judge recommended summary dismissal without
prejudice on November 10, 2015. (Dkt. No. 8.) Plaintiff filed
no objections to the recommendation of the Magistrate Judge.
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). This Court is charged with making a de novo
determination of those portions of the Report and
Recommendation to which specific objection is made.
Additionally, the Court 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). This
Court may also "receive further evidence or recommit the
matter to the magistrate judge with instructions."
Id. Where the plaintiff fails to file any specific
objections, "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, " see Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(internal quotation omitted), and this Court is not required
to give any explanation for adopting the recommendation of
the Magistrate Judge, Camby v. Davis, 718 F.2d 198
(4th Cir. 1983).
prisoner must exhaust his administrative remedies before
filing a § 1983 action concerning his confinement. 42
U.S.C. § 1997(e). Failure to exhaust administrative
remedies is an affirmative defense, Jones v. Bock,
549 U.S. 199, 216 (2007), but if the lack of exhaustion is
apparent from the face of the complaint, sua sponte
dismissal prior to service of the complaint is appropriate.
See Moore v. Bennette, 517 F.3d 717, 725 (4th Cir.
2008); Eriline Co. S.A. v. Johnson, 440 F.3d 648,
655-56 (4th Cir. 2006); Anderson v. XYZ Corr. Health
Servs., Inc., 407 F.3d 674, 683 (4th Cir. 2005). Because
Plaintiff admits that "he is awaiting a response"
to his Step Two grievance (Dkt. No. 1 at 2, 6), it is clear
from the face of the complaint that Plaintiff has not
exhausted his administrative remedies. The Court therefore
summarily dismisses this action without prejudice for failure
to exhaust administrative remedies.
foregoing reasons, the Court ADOPTS the Report and
Recommendation (Dkt. No. 8) as the Order of the Court and
DISMISSES WITHOUT PREJUDICE this action. AND IT IS SO
 The South Carolina Department of
Corrections provides for administrative review of inmate
complaints in two steps. A Step 1 grievance is evaluated by
the warden; any appeal from the warden's decision to a
"responsible official" is designated as Step 2. The
responsible official must render a decision on the appeal
within sixty days, and that decision is the Department of
Correction's final response in ...