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Abdullah-Malik v. Bryant

United States District Court, D. South Carolina, Aiken Division

December 5, 2014

Akeem Alim-Nafis Abdullah-Malik, Plaintiff,
Bruce M. Bryant, Sheriff; James F. Arwood, Jail Administrator; Richard L. Martin, Jr., Assistant Jail Administrator; Gary L. Davis, Security Commander; Sandie Stervul, Dietitian Trinity Food Services Oldsmar, Florida Contracted thru York County Detention Facility; Defendants.


R. BRYAN HARWELL, District Judge.


This matter is before the Court on Plaintiff Akeem Alim-Nafis Abdullah-Malik's Motion to Reconsider the undersigned's September 25, 2014 Order. See Mot. to Alter/Amend, ECF No. 115. Plaintiff asks that the Court reconsider its order, ECF No. 109, adopting the Magistrate Judge's Report and Recommendation ("R & R"), ECF No. 79, dismissing Defendants All Listed and Unknown Agents; Cuzman; Guidery; Hicks; Dover; JT Strait; Penland; Robinson; Yochem; McMahan; Reynolds; Plemmons; MA Gurdry; York County Sheriff's Office; York County Detention Center; and McMillian without prejudice and without service of process. See Order, ECF No. 109 at 3.

Objections to the R & R were originally due on August 29, 2014. See ECF No. 79. Plaintiff requested an extension of time, see ECF No. 84, and the Court granted an extension of fifteen (15) days via text order dated August 27, 2014, see ECF No. 86. This extended the deadline to September 15, 2014. Plaintiff requested an additional extension of time to file objections on September 4, 2014, see ECF No. 95, but the Court found he had not shown good cause to warrant a second extension of time in which to file his objections. The Court did not receive any objections by the September 15, 2014 deadline. The Court waited an additional nine days, and having received no objections, the Court entered its Order adopting the Magistrate Judge's R & R on September 25, 2014. See ECF No. 109.

On October 3, 2014, Plaintiff filed a motion to reconsider the Order adopting the R & R. See ECF No. 115. In his motion, Plaintiff claims that the Court "mischaracterized a previous alter to amend Magistrate Shiva V. Hodges Order where the Plaintiff sought de novo review." See id. at 2. He also claims that he "filed a timely objection to the Magistrate Report and Recommendation." See id. In his "affidavit addendum, " Plaintiff appears to assert that his objections to the R & R were filed via a separate document simultaneously with his motion to alter or amend, ECF No. 92. See ECF No. 115-1. Plaintiff also attached a copy of what he claims are his "written objections" to the R & R. See ECF No. 115-3. Also, in a subsequent filing Plaintiff argues he placed his objections in the same envelope as a separate motion, presumably the motion to alter or amend. See Letter, ECF No. 117-1.

RULE 59(E)

Motions under Rule 59 of the Federal Rules of Procedure are not to be made lightly; "reconsideration of a previous order is an extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." 12 James Wm. Moore et al., Moore's Federal Practice ¶ 59.30[4] (3d ed.); see also Pac. Ins. Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998) ("In general, reconsideration of a judgment after its entry is an extraordinary remedy which should be used sparingly." (internal quotations and citations omitted)). The Fourth Circuit has held such a motion should be granted for only three reasons: (1) to accommodate an intervening change in controlling law; (2) to account for new evidence; or (3) to correct a clear error of law or prevent manifest injustice. Collison v. Int'l Chem. Workers Union, 34 F.3d 233, 235 (4th Cir. 1994) (quoting Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993)). Rule 59 motions "may not be used to make arguments that could have been made before the judgment was entered." Hill v. Braxton, 277 F.3d 701, 708 (4th Cir. 2002). Nor are they opportunities to rehash issues already ruled upon because a litigant is displeased with the result. See Hutchinson v. Staton, 994 F.2d 1076, 1082 (4th Cir. 1993) (stating that "mere disagreement does not support a Rule 59(e) motion") (citation omitted).

Plaintiff's motion, although not entirely clear, appears to assert either that (1) his Motion to Alter or Amend (ECF No. 92) the Magistrate Judge's Order (ECF No. 77), also constituted his objections to the Report and Recommendation (ECF No. 79) or (2) his objections were filed in conjunction with ECF No. 92. The Court first notes that, to the extent Plaintiff claims that his motion to alter or amend the Magistrate Judge's order constituted his objections, his motion is without merit. That document is clearly entitled "Motion to Alter/Amend Order #77" and its contents relate solely to that Order entered by the Magistrate Judge. However, in his motion Plaintiff also appears to indicate that he filed his objections in a separate document, but along with ECF No. 92. Accordingly, Plaintiff's apparently asserts that if the Court does not consider his objections it would amount to manifest injustice.

The Court notes that a thorough review of the docket reveals that the Court never received the filing Plaintiff asserts that he mailed on August 28, 2014. However, Plaintiff has provided an affidavit asserting that "simultaneously Plaintiff filed Objections to Magistrate (R & R) on August 28, 2014." See ECF No. 115-1. Moreover, the certificate of service on the objections attached to his present motion to alter/amend was dated August 28, 2014. See ECF No. 115-3. Plaintiff did in fact place a filing into the mail on August 28, 2014. See Envelope, ECF No. 92-1. However, there is no indication that his objections were including in that envelope, which according to the docket corresponded to his motion for reconsideration, ECF No. 92. However, out of an abundance of caution, the Court will give Plaintiff the benefit of the doubt. Accordingly, the Court GRANTS Plaintiff's motion for reconsideration, and vacates the dismissal of Defendants All Listed and Unknown Agents; Cuzman; Guidery; Hicks; Dover; Strait; Penland; Robinson; Yochem; McMahan; Reynolds; Plemmons; MA Gurdry; YCSO; YCDC; and McMillian. The Court will now consider Plaintiff's objections to the R & R herein. See ECF No. 115-3.


I. Standard of Review

The Magistrate Judge makes only a recommendation to the Court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the Court. 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 R & R to which specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

The right to de novo review may be waived by the failure to file timely objections. Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The Court need not conduct a de novo review when a party makes only "general and conclusory objections that do not direct the [C]ourt to a specific error in the [M]agistrate's proposed findings and recommendations." Id. Moreover, in the absence of objections to the R & R, the Court is not required to give any explanation for adopting the recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). However, in the absence of objections, the Court must "satisfy itself that there is no clear error on the face of the record in ...

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