United States District Court, D. South Carolina, Greenville Division
OPINION & ORDER
M. Herlong, Jr., Senior United States District Judge
matter is before the court on Darell Andre Fuller's
(“Fuller”) motion to appoint counsel and the
Report and Recommendation of United States Magistrate Judge
Kevin F. McDonald, made in accordance with 28 U.S.C. §
636(b)(1) and Local Civil Rule 73.02 of the District of South
Carolina. Fuller, proceeding pro se, filed a civil
rights action pursuant to Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388
(1971). Fuller alleges that he received inadequate medical
care while he was incarcerated at six federal correctional
January 9, 2017, the Defendants filed a motion to dismiss.
(Mot. Dismiss, ECF No. 93.) The magistrate judge issued
Roseboro orders on January 9, 2017, and February 13,
2017, directing Fuller to respond to the Defendants'
motion to dismiss. (Jan. 9, 2017 Order, ECF No. 92); (Feb.
13, 2017 Order, ECF No. 95.) On March 8, 2017, Fuller filed a
motion for an extension of time to respond. (Mot. Extension,
ECF No. 99). Magistrate Judge McDonald granted Fuller's
motion on March 22, 2017. (Mar. 22, 2017 Order, ECF No. 102.)
Fuller did not file a response within the extended time to
respond. Based on Fuller's failure to respond, Magistrate
Judge McDonald recommends dismissing Fuller's complaint
for lack of prosecution pursuant to Rule 41(b) of the Federal
Rules of Civil Procedure. (R&R 3, ECF No. 106.)
filed objections to the Report and Recommendation. Objections
to the Report and Recommendation must be specific. 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 Report and Recommendation
of the magistrate judge, 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).
review, Fuller makes no specific objections, but attempts to
address the merits of the Defendants' motion to dismiss.
(Objs. 1-2, ECF No. 110.) Additionally, Fuller states that
“[t]hese defendants keep filing motion[s] to dismiss on
the same argument.” (Id. at 2, ECF No. 110.)
The court notes that, although Fuller initially filed a
single complaint against all defendants at the six federal
correctional institutions, the Honorable Noel L. Hillman,
United States District Judge for the District of New Jersey,
severed Fuller's claims and transferred each claim to the
proper jurisdiction for each defendant. (Mar. 28, 2016 Order,
ECF No. 43.) Based on the foregoing, Fuller appears to have
confused the defendants in related suits with the Defendants
in this case. Because Fuller's response indicates that he
wishes to continue with this case and respond to the
Defendants' motion to dismiss, the court will allow
Fuller a 21-day extension from the date of this order to file
a response to the Defendants' motion to dismiss. This is
the final extension that will be granted to respond to the
Defendants' motion to dismiss.
has also filed a second motion to appoint counsel. (Sec. Mot.
Appoint Counsel, ECF No. 111.) Magistrate Judge McDonald
denied Fuller's first motion to appoint counsel on March
22, 2017. (Mar. 22, 2017 Order, ECF No. 103.) For the reasons
set forth in the magistrate judge's order, the instant
motion to appoint counsel is denied.
after a thorough review of the Report and Recommendation and
the record in this case, the court declines to adopt the
magistrate judge's Report and Recommendation.
therefore ORDERED that Fuller file a response to
Defendant's motion to dismiss within 21 days of this
order. It is further
that Fuller's motion to appoint counsel, docket number
111, is denied. It is further
that this case is remanded to the magistrate judge for
 The recommendation has no presumptive
weight, and the responsibility for making a final
determination remains with the United States District Court.
See 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 and Recommendation to which specific
objection is made. The court may accept, reject, or modify,
in whole or in part, the recommendation made ...