Wolfe v. Churray

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA FLORENCE DIVISION Michael E. Wolfe, ) Case No.: 4:20-cv-0244-JD-TER ) Plaintiff, ) ) vs. ) REVISED ) OPINION & ORDER Nfn Churray; Officer Kayla Shervey; Nfn ) Moccabello; Nfn Caldwell, Sgt.; Nfn Perks, ) Lt.; Nfn Lasley, Captain; Nfn Toth, Captain; ) Jimmy Pacheco, licensed clinical ) psychiatrist; Kathy Wyant, Human Servs. ) Coord.; Nfn Early, Associate Warden; ) Donna Ahley-Harouff, nurse; Amy Enloe, ) field nurse practitioner; Nfn Glen, deputy ) warden; Nfn Osborne, registered nurse, ) Thomas Overman, registered nurse; Dr. ) McRee; Nfn Welch, transportation sgt.; ) L.Harris, registered nurse; Warden, F.C.I. ) Edgefield, ) ) Defendants. ) ) This matter is before the Court for review of the Report and Recommendation of United States Magistrate Thomas E. Rogers, III (“Report and Recommendation”), made in accordance with 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2) of the District of South Carolina1. Michael E. Wolfe (“Wolfe”) proceeding pro se, filed this action seeking damages based on alleged civil rights violations pursuant to 42 U.S.C. § 1983. Defendants Nfn Osborne and Thomas Overman (“Defendants”) filed a Motion to Dismiss for Failure to State a Claim and/or Motion for 1 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, 270-71 (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 by the magistrate judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1). Summary Judgment (“Motion”) under the Federal Rules of Civil Procedure 12(b)(6) on March 27, 2020. (DE 22.) Plaintiff filed a response in opposition to the Motion on April 10, 2020. (DE 31.) Wolfe filed objections to the Report and Recommendation. (DE 74.) However, to be actionable, 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). Upon review, the court finds that Wolfe’s objections are non-specific, unrelated to the dispositive portions of the Report and Recommendation, or merely restate his claims. Accordingly, after review, the court finds that Wolfe’s objections are without merit. Therefore, after a thorough review of the report and the record in this case, the court adopts the Report and Recommendation and incorporates it herein by reference.

It is therefore ORDERED that the Defendants’ Motion to Dismiss and Motion for Summary Judgment (DE 22) is granted in part as it relates to medical malpractice claims and denied without prejudice as to all other claims. IT IS SO ORDERED.

s/Joseph Dawson, III Joseph Dawson, III United States District Judge

February 25, 2021 Greenville, South Carolina NOTICE OF RIGHT TO APPEAL

Plaintiff is hereby notified that he has the right to appeal this order within thirty (60) days

from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.