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McPherson v. Kutz

United States District Court, D. South Carolina

July 15, 2015

Sanchez Ozell McPherson, Plaintiff,
v.
SPO M Kutz, Officer, Charleston Police Department; Detective Osburne, Charleston Police Department; ATF, Government — Alcohol, Tobacco, Firearms; Sean Kittrell, Government's Prosecutor; John A. Schroepfer, ATF Agent, Defendants.

ORDER

RICHARD MARK GERGEL, District Judge.

This matter comes before the Court on the Report and Recommendation (R & R) of the Magistrate Judge (Dkt. No. 10), 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 only in part.

I. Background[1]

Plaintiff alleges that he was arrested on March 7, 2008, for armed robbery, based on a victim statement that Plaintiff took $300 from the victim's pocket. (Dkt. No.1 at 3). Defendant Kutz removed $730 from Plaintiff's pocket during the booking process and gave it to his supervisor, Defendant Osburne, who "entered the currency into evidence property." ( Id. ). Plaintiff alleges that Defendant ATF then "adopted the case." ( Id. ). Plaintiff pled guilty to carrying a firearm, and the armed robbery count was dismissed. ( Id. at 4). Plaintiff alleges that his money has never been returned and alleges a deprivation of property in violation of the Due Process Clause, seeking return of the $730. (Dkt. No.1).

The Magistrate Judge recommending (1) dismissing the claims against ATF because they are barred by the doctrine of sovereign immunity, (2) dismissing the claims against Defendants Kittrel and Schroepfer for failure to state a claim because Plaintiff has made no allegations against them, and (3) dismissing the claims against Defendants Kutz and Osburne because South Carolina has a post-deprivation remedy that satisfies due process. Plaintiff concedes that the claims against the federal defendants should be dismissed but objects to the dismissal of his claims against Defendants Kutz and Osburne. (Dkt. No. 18 at 4).

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).

However, as to portions of the R & R to which no objection is 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.'" Diamond v. Colonial Life & Ace. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P 72 advisory committee note). Additionally, the Court need not give any explanation for adopting the R & R in the absence of specific objections by the parties. See Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983) ("Absent objection, we do not believe that any explanation need be given for adopting the report.").

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 malicious, " "fails to state a claim on which relief may be granted, " or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989).

III. Discussion

Plaintiff concedes that Defendants ATF, Kittrell, and Schroepfer should be dismissed. (Dkt. No. 18 at 4). For the reasons stated in the R & R, the Court agrees and dismisses these defendants.

As to Defendants Kutz and Osburne, the Court declines to adopt the R & R. Plaintiff is correct that the Parratt/Hudson line of cases is not directly applicable here. (Dkt. No. 18 at 2). In these two cases, the Supreme Court "reasoned that where a loss of property is occasioned by a random, unauthorized act by a state employee, rather than by an established state procedure, the state cannot predict when the loss will occur." Hudson v. Palmer, 468 U.S. 517, 532 (1984). In such cases "it is not only impracticable, but impossible, to provide a meaningful hearing before the deprivation." Id. (quoting Parratt v. ...


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