United States District Court, D. South Carolina, Rock Hill Division
C. COGGINS, JR., UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants' Motions to
Dismiss and for Summary Judgment. ECF Nos. 39, 46. Plaintiff
filed Responses in Opposition, Defendant Rabon filed a Reply,
and Plaintiff filed a Sur-Reply. ECF Nos. 44, 52, 53, 55. In
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2), (D.S.C.), this matter was referred to United
States Magistrate Judge Paige J. Gossett for pre-trial
proceedings and a Report and Recommendation
(“Report”). On February 19, 2019, the Magistrate
Judge issued a Report recommending that both Motions be
granted. ECF No. 56. Plaintiff filed objections to the
Report. ECF No. 58.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. See Mathews v. Weber, 423 U.S. 261 (1976).
The Court is charged with making a de novo determination of
any portion of the Report of the Magistrate Judge to which a
specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation made by the
Magistrate Judge or recommit the matter to the Magistrate
Judge with instructions. See 28 U.S.C. §
636(b). The Court will review the Report only for clear error
in the absence of an objection. See Diamond v. Colonial
Life & Accident Ins. Co., 416 F.3d 310, 315 (4th
Cir. 2005) (stating that “in the absence of 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.” (citation omitted)).
Magistrate Judge provides a thorough recitation of the facts
and the relevant legal standards, which the Court
incorporates by reference. Plaintiff brings this action
pursuant to the Federal Tort Claims Act (“FTCA”),
28 U.S.C. §§ 2671-2680, 1346(b) and Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971), and asserts a state law claim of medical
malpractice. The Magistrate Judge found that Plaintiff failed
to exhaust his administrative remedies with respect to his
Bivens and FTCA claims. She further determined that
he failed to file an affidavit of an expert witness as
requested by South Carolina law to state a claim for
respect to his Bivens claim, Plaintiff contends that
he exhausted his administrative remedies. However, upon
review of the record and the applicable law, the Court agrees
with the Magistrate Judge's conclusion that he failed to
properly exhaust his administrative remedies in accordance
with the requirements of the Prison Litigation Reform Act.
Moreover, it does not appear that the prison grievance system
was unavailable to him. Accordingly, Plaintiff's
objection is overruled.
his FTCA claim, Plaintiff asserts that this Court has
jurisdiction over his claim pursuant to the Commerce Clause.
Upon de novo review of the record and the applicable law, the
Court agrees with the recommendation of the Magistrate Judge
that Plaintiff failed to exhaust his administrative remedies
prior to filing this action. See McNeil v. United
States, 508 U.S. 106, 113 (1993) (holding that the FTCA
exhaustion requirement is jurisdictional, the subsequent
denial of an administrative claim cannot cure a prematurely
filed action invoking the FTCA); Celestine v. Mount
Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d
Cir. 2005) (“The FTCA requires that a claimant exhaust
all administrative remedies before filing a
complaint in federal district court.”) (emphasis
respect to his state law claim of medical malpractice,
Plaintiff appears to allege that he would have filed the
proper documentation if counsel had been appointed but he
does not disagree with the recommendation of the Magistrate
Judge. Upon review, the Court agrees with the recommendation
of the Magistrate Judge and finds that this claim should be
dismissed because Plaintiff failed to file an expert
affidavit. See Prozer v. United States, C/A No.
9:14-1249-TMC, 2014 WL 6686697, at *2 (D.S.C. Nov. 25, 2014)
(holding that the failure to file an expert affidavit
subjects the complain to dismissal, and that such a
requirement is part of the substantive law of medical
malpractice in South Carolina). Further, for the reasons
given by the Magistrate Judge in her order dated August 10,
2018, Plaintiff is not entitled to counsel in this action.
See ECF No. 12 at 2.
generally argues that the Magistrate Judge failed to
correctly apply the relevant standards of review, that his
medical records are sufficient to create a genuine issue of
material facts, and that the Court should have appointed him
an attorney. Upon review, the Court overrules his objections.
based on the foregoing, the Court adopts the recommendation
of the Magistrate Judge. Defendants' Motion to Dismiss
 is GRANTED and Plaintiff's
Bivens and FTCA claims are dismissed without
prejudice. Defendants' Motion for Summary ...