United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
Bernard McFadden (“Plaintiff”), proceeding pro
se, brings this action seeking relief pursuant to 42 U.S.C.
§§ 1981 and 1983. (ECF No. 1.) This matter is
before the court for review of the Magistrate Judge's
Report and Recommendation (“Report”) (ECF No. 8),
filed February 23, 2016, recommending that Plaintiff's
Complaint (ECF No. 1) be dismissed with prejudice. After
considering Plaintiff's Objections
(“Objections”) (ECF No. 11), filed March 9, 2017,
the court ACCEPTS the Magistrate Judge's
Report (ECF No. 8) and DISMISSES
Plaintiff's Complaint (ECF No. 1).
FACTUAL AND PROCEDURAL BACKGROUND
court adopts the findings of the Magistrate Judge's
Report as its own and only relays herein the facts necessary
to decide the issues below.
October 6, 2015, Plaintiff filed an action against Defendants
under 42 U.S.C. §§ 1981 and 1983. (ECF No. 1.)
Plaintiff contends that his exclusion from a work release
program was in retaliation for previous litigation and was
racially motivated. (ECF No. 1.) Plaintiff further contends
that South Carolina Department of Corrections'
(“SCDC”) Director Stirling intentionally designed
Policy OP-21.04, Section 49.1 in order to “retaliate by
selectively allowing work release for some inmates while
discriminating against other inmates.” (ECF No. 1.)
Plaintiff claims that his exclusion from the work release
program and the policy facilitating the same are a violation
of his civil rights and thus give rise to an action under 42
U.S.C. § 1983.
Magistrate Judge's Report is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(c)
for the District of South Carolina. The Magistrate Judge
makes only a recommendation to the court, which 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 reviews de
novo only those portions of a magistrate judge's report
and recommendation to which specific objections are filed,
and reviews those portions which are not objected to -
including those portions to which only “general and
conclusory” objections have been made - for clear
error. See Diamond v. Colonial Life & Acc. Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v.
Davis, 718 F.2d 198, 200 (4th Cir. 1983); Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The court may
accept, reject, or modify, in whole or in part, the
recommendation of the magistrate judge or recommit the matter
with instructions. See 28 U.S.C. § 636(b)(1).
Report was filed February 23, 2016. (ECF No. 8.)
filed his Objections to the Report on March 9, 2016. (ECF No.
11.) The court perceives that Plaintiff made three specific
objections to the Report:
1. Plaintiff specifically objects to the Report's
characterization of Defendants as immune from suit under the
2. Plaintiff specifically objects to the Report's
assertion that Plaintiff's claims have previously been
3. Plaintiff specifically objects to the Report's
assertion that Plaintiff claimed a constitutional right to
work release as opposed to claiming a lack of equal
(ECF No. 11.)
Defendants' Eleventh Amendment ...