United States District Court, D. South Carolina, Beaufort Division
MICHELLE CHILDS, District Judge.
Kojo Soweto Ameen ("Plaintiff"), proceeding pro se
and in forma pauperis, brings this action seeking
relief pursuant to 42 U.S.C. § 1983. (ECF No. 1.) This matter
is before the court for review of the Magistrate Judge's
Report and Recommendation ("Report") (ECF No. 22),
filed May 27, 2015, recommending that Plaintiff's
Complaint (ECF No. 1) be dismissed without prejudice and
without issuance and service of process. For the reasons
below, the court ADOPTS the Magistrate Judge's Report
(ECF No. 22) and DISMISSES Plaintiff's Complaint (ECF No.
FACTUAL AND PROCEDURAL BACKGROUND
November 14, 2014, Plaintiff filed an action against the
South Carolina Department of Corrections, Warden Bush, Warden
Deen, and Warden Nolan ("Defendants") alleging that
second hand smoke attributed to him testing positive for
tetrahydrocannabinol ("THC"), which reduced the
likelihood of being granted parole. (ECF No. 22.) Plaintiff
requested that the court order South Carolina Department of
Corrections ("SCDC") to acknowledge that Lee
Correctional Institution is a smoke free environment thereby
making a positive result from second hand smoke impossible. (
Id. at 2-3.)
Magistrate Judge's Report is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the
District of South Carolina. The Magistrate Judge makes only a
recommendation to this court, which has no presumptive
weight. The responsibility to make a final determination
remains with this court. See Mathews v.
Weber, 423 U.S. 261, 270-71 (1976). The court reviews de
novo only those portions of a magistrate judge's report
and recommendation to which specific objections are filed,
and reviews those portions which are not objected to -
including those portions to which only "general and
conclusory" objections have been made - for clear error.
See Diamond v. Colonial Life & Acc. Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v.
Davis, 718 F.2d 198, 200 (4th Cir. 1983); Orpiano v.
Johnson, 687 F2.d 44, 47 (4th Cir. 1982). The court may
accept, reject, or modify, in whole or in part, the
recommendation of the magistrate judge or recommit the matter
with instructions. See 28 U.S.C. § 636(b)(1).
Magistrate Judge determined Plaintiff's Complaint (ECF
No. 1) did not sufficiently provide a basis for claims
against each defendant. (ECF No. 22 at 3 (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).)
Moreover, Plaintiff's assertion that SCDC does not follow
administrative policies is not alone actionable under § 1983.
( Id. at 7 (citing Keeler v. Pea, 782
F.Supp. 42, 44 (D.S.C. 1992)).) An order to SCDC amounts to a
writ of mandamus, which the Magistrate Judge noted is "a
drastic remedy which is infrequently used by federal courts,
and its use is usually limited to cases where a federal court
is acting in aid of its own jurisdiction." (
Id. (citing 28 U.S.C. § 1361; Gurley v. Superior
Ct. of Mecklenburg Cty., 411 F.2d 586, 587-88 (4th Cir.
1969)).) Additionally, "federal courts have no general
power to compel action by state officials." (
Id. at 8 (quoting Davis v. Lansing, 851
F.2d 72, 74 (2d Cir. 1988)).) Finally, Plaintiff has no
constitutionally protected interest of early release on
parole. ( Id. (citing Greenholtz v. Inmates of
Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979)).)
filed objections ("Objection") to the Magistrate
Judge's Report and Recommendation on July 15, 2015 (ECF
No. 24.) Plaintiff's Objection ( id. ) states
Plaintiff object to SCDC Drug policy # 903 and GA-03.02 in
that it discriminate against none smokers. (1) SCDC does
nothing to protect nonsmokers; (2) Plaintiff are being
punished for breathing second hand smoke; (3) Plaintiff also
stated that smoke come through the air ventilation; (4)
Plaintiff state that the warden name is conected to all SCDC
policy concerning rules violation; (5) Plaintiff seek
protection from the court, his last option.
court is not obligated to provide de novo review because
Plaintiff fails to provide specific objections to the Report.
(ECF No. 24 (Fed R. Civ. P. 72(b)(3) (requiring a district
judge to determine de novo any part of the magistrate
judge's disposition that has been properly objected
to)).) Therefore, the 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 & Acc. Ins. Co., 416 F.3d 310, 315 (4th
Cir. 2005) (quoting an advisory committee note in
Fed.R.Civ.P. 72). Upon review of the record, no clear errors
thorough review of the Report, the court ADOPTS the findings
of the Magistrate Judge's Report (ECF No. 22) and