United States District Court, D. South Carolina, Anderson/Greenwood Division
Kenneth Syncere Rivera, a/k/a Kenneth D. Rivera, a/k/a Kenneth Rivera, Plaintiff,
Bryan Stirling, and South Carolina Department of Corrections, Defendant.
matter is before the court upon review of the Magistrate
Judge's Report and Recommendation (“Report”)
filed on June 11, 2019 (ECF No. 28). The court
ACCEPTS the Report and incorporates it
herein by reference. For the reasons set out in the Report,
the court GRANTS Defendants Bryan Stirling
and the South Carolina Department of Corrections'
(“SCDC”) Motion for Judgment on the Pleadings
(ECF No. 17) for failure to state a claim on which relief may
FACTUAL AND PROCEDURAL BACKGROUND
October 29, 2018, Plaintiff, proceeding pro se, commenced
this 42 U.S.C. § 1983 action against Defendants. (ECF
No. 1 at 1.) Defendants removed the action from the Richland
County Court of Common Pleas on March 11, 2019, (ECF No. 1)
and filed a Motion for Judgment on the leadings on May 2,
2019 (ECF No. 17). The next day, the Magistrate Judge entered
a Roseboro Order, advising Plaintiff of the
procedures and the consequences of failing to adequately
respond to Defendants' Motion. (ECF No. 18.) On May 20,
2019, the Clerk of the United States District for the
District of South Carolina docketed Plaintiff's Response
in Opposition to the Motion. (ECF No. 26.)
11, 2019, the Magistrate Judge entered her Report. (ECF No.
28.) The Report recommends granting Defendants' Motion
for Judgment on the Pleadings (ECF No. 17) for failure to
state a claim on which relief may be granted under 42 U.S.C.
§ 1983 because neither Defendant is a
“person” pursuant to § 1983, and Plaintiff
has not met his burden to establish a § 1983 supervisory
liability claim. (ECF No. 28 at 7-10 (citing Will v.
Mich. Dep't of State Police, 491 U.S. 58, 71 (1989);
Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994);
Nelson v. Lexington Cty. Det. Ctr., No.
8:10-cv-2988-JMC, 2011 WL 2066551 (D.S.C. May 26, 2011).)
STANDARD OF REVIEW
Report is made in accordance with 28 U.S.C. § 636(b)(1)
and Local Civil Rule 73.02 for the District of South
Carolina. The Magistrate Judge makes only a recommendation to
this 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 is charged with making a de
novo determination of those portions of the Report to
which specific objections are made. Diamond v. Colonial
Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005). The court may accept, reject, or modify, in whole or
in part, the Magistrate Judge's recommendation or
recommit the matter with instructions. See U.S.C.
11, 2019, the Magistrate Judge notified the parties of their
right to file objections by June 25, 2019. (ECF No. 28.)
Neither of the parties filed any objections to the Report by
this date. In the absence of objections to the Report, this
court is not required to provide an explanation for adopting
the recommendation. See Camby v. Davis, 718 F.2d
198, 199 (4th Cir. 1983). Rather, “in the absence of a
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.'”
Diamond v. Colonial Life & Acc. Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72
advisory committee's note). Furthermore, failure to file
specific, written objections to a report results in a
party's waiver of the right to appeal from the judgment
of a district court based upon such recommendation. 28 U.S.C.
§ 636(b)(1); Thomas v. Arn, 474 U.S. 140
(1985). Accordingly, since none of the parties filed any
objections to the Report, and the court observes no clear
error on the face of the record, the court accepts the
Report. See Diamond, 416 F.3d at 315;
Camby, 718 F.2d at 199.
thorough review of the Report and the record in this case,
the court finds the Report provides an accurate summary of
the facts and law and does not contain clear error.
Therefore, the court ACCEPTS the Magistrate
Judge's Report and Recommendation (ECF No. 28) and
incorporates it herein by reference. For the reasons set out
in the Report, the court GRANTS the
Defendants' Motion for Judgment on the Pleadings (ECF No.
IS SO ORDERED.
 In Roseboro v. Garrison, the
United States Court of Appeals for the Fourth Circuit held
that district courts are required to provide pro se litigants
with an explanation of summary judgment ...