United States District Court, D. South Carolina
JOSEPH F. ANDERSON, Jr., District Judge.
The pro se plaintiff, Benjamin Heyward, brings this action pursuant to 42 U.S.C. § 1983, alleging that he was subjected to excessive force while he was an inmate at the Lieber Correctional Institution, part of the South Carolina Department of Corrections ("SCDC").
The Magistrate Judge assigned to this action has prepared a Report and Recommendation wherein he suggests that the court should summarily dismiss this action because the named defendant, the South Carolina Department of Corrections, is immune from suit under the Eleventh Amendment to the United States Constitution. The Report sets forth in detail the relevant facts and standards of law on this matter, and the court incorporates such without a recitation.
The plaintiff was advised of his right to file objections to the Report. The plaintiff instead filed a motion to dismiss the action contending that he "made a mistake and sent his 1983 section to be filed. Plaintiff was informed that he cannot file his 1983 when he has a pending complaint in the lower court concerning his 1983." Plaintiff also indicates that the lower court is going to dismiss his complaint due to not having the filing fee, but that he is going to include the claims of this action into his state court action.
As the Magistrate Judge notes in his Report, the South Carolina Department of Corrections, the only defendant named by the plaintiff in this action, is immune from suit under the Eleventh Amendment.
After a careful review of the record, the applicable law, the Report and Recommendation, and the plaintiff's motion to dismiss this action, the court finds that the Magistrate Judge's recommendation is proper and it is incorporated herein by reference. Accordingly, this action is dismissed without prejudice and without issuance and service ...