United States District Court, District of South Carolina
RICHARD MARK GERGEL UNITED STATES DISTRICT JUDGE
This matter comes before the Court on the Report and Recommendation (R & R) of the Magistrate Judge (Dkt. No. 16), recommending that this action be summarily dismissed without prejudice and without issuance of service. Plaintiff has filed objections to the R & R. For the reasons stated below, the Court the adopts the R & R in part and dismisses this case without prejudice.
Plaintiff alleges that on February 7, 2007, he was arrested on charges of assault and battery with intent to kill, assault and battery of a high and aggravated nature, and malicious injury to personal property without any evidence to support the charges. (Dkt. No. 1). He makes a number of allegations about Deputy Walker's use of force during the arrest and alleges that as a result of Walker's use of force, he sustained a serious neck injury requiring a diskectomy. (Id.). Plaintiff appears to alleges constitutional claims pursuant to 42 U.S.C. §§ 1983, 1985 and 18 U.S.C. § 242 and state law claims.
In 2008, Plaintiff brought an action in state court against the County of Jasper, the Jasper County Sheriffs Office, and Ernest Walker (Case No. 2008-CP-00223), which was removed to this Court in April of 2008 (Case No. 9:08-cv-1755-CWH). A review of the Complaint in that action reveals that it concerned the same facts as this action. See Dupont v. County of Jasper, et. al, Case No. 9:08-cv-1755-CWH (D.S.C. 2008) ("Dupont 1"), Dkt. No. 1. On August 15, 2008, Plaintiff, represented by counsel, entered into a Consent Order of Dismissal that dismissed his Section 1983 cause of action with prejudice and his state claims without prejudice. (Dkt. No. 20-1 at 3-4).
A week later, Plaintiff filed another lawsuit in state court, Dupont v. County of Jasper, et, al, Case No. 2008-CP-27-0529 (Dupont IF) bringing his state law claims concerning the February 7, 2007 arrest. (Dkt. No. 1 at 1-2). Records from the Jasper County Court of Common Pleas indicate that the action was disposed of in a jury trial in September of 2012, with a defense verdict. See Jasper County Fourteenth Judicial Circuit Public Index, available at http://publicindex.sccourts, org/Jasper/PublicIndex/CaseDetails.aspx?County=27&CourtAgency= 27002&Casenum=2008CP2700529&CaseType=V (last visited March 11, 2015). Plaintiff appealed, the Court of Appeals affirmed and remittitur was issued on June 24, 2014. See id; (Dkt. No. 1 at 2). Plaintiff then filed this suit on September 8, 2014. (Dkt. No. 1).
The Magistrate Judge recommended that this action be dismissed because it is barred by the doctrines of res judicata and collateral estoppel, Plaintiffs claims are barred by the statute of limitations, and the Plaintiffs suit suffers from a number of other infirmities. (Dkt. No. 16). Plaintiff filed objections. (Dkt. No. 20).
II. Legal Standard
A. Report & Recommendation
The 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. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). This Court is charged with making a de novo determination of those portions of the R & R or specified proposed findings or recommendations to which objection is made. Diamond v. Colonial Life & Ace. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting 28 U.S.C. § 636(b)(1)); accord Fed. R. Civ. P. 72(b).
As to portions of the R & R to which no specific objection has been made, this Court "must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.' " Id. (quoting Fed. R. Civ. P 72 advisory committee note). Moreover, in the absence of specific objections to the R & R, the Court need not give any explanation for adopting the Magistrate Judge's analysis and recommendation. See Camby v. Davis, 718 F.2d 198, 199-200 (4th Cir.1983).
B. Summary Dismissal
Pro se complaints are construed liberally to allow the development of meritorious claims. See, e.g., Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978) ("[A] complaint, especially a pro se complaint, should not be dismissed summarily unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief....") (internal quotations omitted). However, the requirement of a liberal construction does not mean that the Court can ignore a plaintiffs clear failure to allege facts that set forth a cognizable claim. See Well v. Dep't of Soc. Servs. for City of Baltimore, 901 F.2d 387, 391 (4th Cir. 1990) ("The special judicial solicitude with which a district court should view pro se complaints does not transform the court into an advocate."). Furthermore, the Court must dismiss an in forma pauperis action sua sponte if the claim is "frivolous or ...