United States District Court, D. South Carolina, Greenville Division
C. COGGINS, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court upon Plaintiff's complaint
alleging violations of his civil rights pursuant to 42 U.S.C.
§ 1983. ECF No. 1. 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 Kevin F.
McDonald for pre-trial proceedings and a Report and
originated this case on April 3, 2019. ECF No. 1. On
April 12, 2019, he was directed to file certain documents to
bring this case into proper form for further evaluation and
possible service of process. ECF No. 7. Plaintiff has been
sent two additional proper form orders and has received
extensions of time to bring this case into proper form. ECF
Nos. 13, 17, 23. He has continued to file documents and
motions. ECF Nos. 11, 12, 15, 20, 22, 26, 29, 30. However, to
date, this action has not been brought into proper form. On
July 22, 2019, Plaintiff filed motions for preliminary
injunction and to voluntarily dismiss. ECF Nos. 31, 33. On
July 25, 2019, the Magistrate Judge issued Reports with
respect to both motions. ECF Nos. 35, 36. The Magistrate
Judge advised Plaintiff of the procedures and requirements
for filing objections to the Report and the serious
consequences if he failed to do so. On August 1, 2019,
Plaintiff filed motions to stay and for a preliminary
injunction. ECF Nos. 38, 39. On August 8, 2019, he filed
objections to the Reports. ECF Nos. 40, 41.
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)).
initial matter, based on the filings received after the
Magistrate Judge filed his Report recommending that
Plaintiff's motion to voluntarily dismiss be granted, it
appears that Plaintiff does intend to proceed with this
action. Accordingly, the Court finds as moot Plaintiff's
motion to voluntarily dismiss and the corresponding Report.
to the first motion for preliminary injunction, the
Magistrate Judge recommends denying the motion. The
Magistrate Judge determined that because, at that time,
Plaintiff had stated his intention to close the case, he
could not demonstrate that he was likely to succeed on the
merits. The Court respectfully declines to adopt this portion
of the Report because Plaintiff's motion for voluntary
dismissal has been found as moot.
Magistrate Judge further stated that Plaintiff has not
demonstrated that he is likely to succeed on the merits
because he has provided nothing to substantiate the
allegations contained in the complaint or the motion for
preliminary injunction. In his objections, Plaintiff
reiterates his unsupported allegations and requests that he
be moved to another correctional institution. The Court
agrees with the Magistrate Judge and adopts this portion of
the Magistrate Judge's Report. See Lal v.
Felker, C/A No. S-07-2060GEBEFB, 2010 WL 2925364, at *1
(E.D. Cal. July 26, 2010), report adopted, C/A No.
S-07-2060 GEB EF, 2010 WL 3787011 (E.D. Cal. Sept. 24, 2010)
(“Apart from plaintiff's unsupported allegations
there is no evidence establishing that plaintiff is likely to
prevail on his medical treatment claims, or that the
injunction sought is necessary to preserve the court's
ability to grant effective relief on those claims and that it
is the least intrusive means for doing so.”). Further,
the Court agrees with the Magistrate Judge's analysis of
Plaintiff's request to be moved to another correctional
institution and incorporates that discussion by reference.
Olim v. Wakinekona, 461 U.S. 238 (1983) (holding
that there is no constitutional right to be housed in a
particular institution, at a particular custody level, or in
a particular portion or unit of a correctional
moves to stay this action to allow him to exhaust his
administrative remedies. Plaintiff admits that he has not
exhausted his claim through the administrative appeal
process. 42 U.S.C. § 1997e(a) provides that no §
1983 action “shall be brought . . . until such
administrative remedies as are available are
exhausted.” Accordingly, this motion is denied.
the Court FINDS as MOOT Plaintiff's
motion to voluntarily dismiss  and the Magistrate
Judge's corresponding Report . The Court adopts in
part and respectfully declines to adopt in part the
Magistrate Judge's Report  and
DENIES Plaintiff's motion for
preliminary injunction . Plaintiff's second motion
for preliminary injunction  is FOUND as
MOOT. Plaintiff's motion to stay  is
stated at the beginning of the Order, Plaintiff has not yet
brought this case into proper form. He is directed to file
all necessary documents within 30 days plus three days mail
time. Failure to do so will subject this case to dismissal
without prejudice for failure to comply with an Order of this
Court pursuant to Federal Rule of Civil Procedure 41(b). In
light of the numerous extensions that Plaintiff has received,
no further extensions will be granted absent a showing of
extraordinary circumstances. The Clerk of Court is
directed to remail a copy of the last proper form order 
and any accompanying documents to Plaintiff along with a copy
of this Order.
OF RIGHT TO APPEAL
parties are hereby notified of the right to appeal this order
pursuant to Rules 3 and 4 of the ...