United States District Court, D. South Carolina, Florence Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE Senior United States District Judge
This matter is before the court on Plaintiff’s pro se complaint filed pursuant to 42 U.S.C. §1983 on June 17, 2015. ECF No. 1. Defendants Lake City Police Department and ABC Insurance Company were dismissed from the case on October 13, 2015. ECF No. 22. On February 9, 2016, the remaining Defendants filed a motion for summary judgment. ECF No. 41. A Roseboro order was entered by the court and mailed to Plaintiff on February 10, 2016, advising Plaintiff of the importance of a dispositive motion and the need for Plaintiff to file an adequate response. ECF No. 42. Plaintiff did not file a response.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(d), DSC, this matter was referred to United States Magistrate Judge Thomas E. Rogers, III for pre-trial proceedings and a Report and Recommendation (“Report”). On March 24, 2016, the Magistrate Judge issued a Report recommending that the case be dismissed for failure to prosecute pursuant to Fed.R.Civ.P. 41(b), or in the alternative that Defendants’ motion for summary judgment be granted and the case dismissed. ECF No. 45. The Magistrate Judge advised the Parties of the procedures and requirements for filing objections to the Report and the serious consequences if they failed to do so. Plaintiff filed objections to the Report on April 11, 2016. ECF No. 47. Defendants did not file objections.
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. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of any portion of the Report of the Magistrate Judge to which a 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 to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b).
Plaintiff presents three general objections to the Report. The court reviews Plaintiff’s objections below.
a. Response to Summary Judgment Motion
In her April 11, 2016 filing, Plaintiff avers that she “did not file a response to the Motion for Summary Judgment because the court did not instruct her to do so. If indeed the court made such an instruction, it was not communicated to the Plaintiff.” ECF No. 47. However, the docket shows that after the motion for summary judgment was filed on February 9, 2016, a Roseboro Order was sent to Plaintiff on February 10, 2016. ECF No. 42. This Order explains the process and importance of a response to the summary judgment motion, and requires that any response be filed within thirty-four (34) days. Id. The Order was placed in the mail to Plaintiff, addressed to the same P.O. Box Plaintiff provided to the court and where the Report was received by Plaintiff in March. It was not returned to the court as undeliverable.
The court has considered any prejudice that may have been suffered by Plaintiff if in fact she did not receive the Roseboro Order and did not file a response to the summary judgment motion for that reason. The summary judgment issues discussed below are legal issues, not factual issues, so Plaintiff’s failure to submit a response to the summary judgment motion regarding her version of the facts has not prejudiced her. Because Plaintiff has timely objected to the Report, the court has considered Plaintiff’s arguments against summary judgment and reviews the summary judgment motion and the Magistrate’s Report de novo.
The Magistrate Judge did not have the benefit of Plaintiff’s response, and so determined that Plaintiff had abandoned her case. As Plaintiff has filed objections to the Report and has not abandoned her case, the court will not dismiss her claims under Fed.R.Civ.P. 41(b) for failure to prosecute and as such will not adopt that portion of the Report.
b. Statute of Limitations
Plaintiff next addresses the statute of limitations issue, arguing that Section 1983 does not contain an express statute of limitations. ECF No. 47 at 2. However, the law is well-settled on this question. While Plaintiff is correct that the statute of limitations is not contained within the text of § 1983, the Supreme Court has decided that the state’s general statute of limitations for personal injury claims applies, even if the state has different statutes of limitation for intentional torts. Owens v. Okure, 488 U.S. 253, 249-50 (1989) (“We accordingly hold that where state law provides multiple statutes of limitation for personal injury actions, courts considering § 1983 claims should borrow the general or residual statute for personal injury actions.”); see also Owens v. Baltimore City State’s Attorneys Office, 767 F.3d 379 (4th Cir. 2014) (“[T]o determine the timely filing of a § 1983 claim, courts borrow the statute of limitations from the most analogous state-law cause of action. For § 1983 suits, that cause of action is a personal-injury suit.”). South Carolina law allows three years for a plaintiff to bring a personal injury action. S.C. Code Ann. § 15-3-530 (5). Therefore, the statute of limitations for § 1983 claims arising in South Carolina is three years, regardless of the underlying allegations of the § 1983 claim. See Hamilton v. Middleton, No. 4:02-1952-23, 2003 WL 23851098, at *4 (D.S.C. June 20, 2003). The statute of limitations accrues “when the plaintiff possesses sufficient facts about the harm done to him that reasonable inquiry will reveal his cause of action.” Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 955 (4th Cir. 1995).
Plaintiff alleges five causes of action under § 1983 which appear to be a claim for false arrest, three claims of excessive force, and a claim of a “custom and policy of constitutional violations.” ECF No. 1, at ¶¶ 35-46. The Magistrate Judge’s Report concluded that all § 1983 claims accrued as of the date of arrest, which was November 20, 2011, and ...