United States District Court, D. South Carolina, Florence Division
BRYAN HARWELL, District Judge.
proceeding pro se, brought this lawsuit against
Defendants State of South Carolina and Horry County Court of
Common Pleas alleging retaliation for filing a housing
discrimination complaint, in violation of 42 U.S.C. Â§ 3617,
and "to enforce rights and to redress the deprivation of
those rights which he holds pursuant to Article IV of the
United States Constitution, and under the 4th and 14th
Amendments." Compl., p. 3. Plaintiff requested
injunctive relief and a declaratory judgment. This matter is
now before the court with the [ECF No. 11] Report and
Recommendation ("R & R") of United States
Magistrate Judge Thomas E. Rogers, III,  filed on February 8,
2016. In the R & R, the Magistrate Judge recommends that the
court should dismiss Plaintiff's complaint without
prejudice. Plaintiff timely filed objections to the R & R.
See Obj. [ECF No. 13].
Magistrate Judge makes only a recommendation to the court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The court is charged with making a de novo
determination of those portions of the Report to which
specific objection is made, and the court may accept, reject,
or modify, in whole or in part, the recommendation of the
Magistrate Judge, or recommit the matter with instructions.
28 U.S.C. Â§ 636(b)(1).
court is obligated to conduct a de novo review of
every portion of the Magistrate Judge's report to which
objections have been filed. Id. However, the court
need not conduct a de novo review when a party makes
only "general and conclusory objections that do not
direct the court to a specific error in the magistrate's
proposed findings and recommendations." Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of a timely filed, specific objection, the Magistrate
Judge's conclusions are reviewed only for clear error.
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).
R & R, the Magistrate Judge recommended summary dismissal of
the Complaint in this case. See R & R at 12
("[I]t is recommended that the district judge dismiss
the complaint in this case without prejudice and without
issuance and service of process, and that Plaintiff's
outstanding motion (for a temporary restraining order) be
denied."). Plaintiff filed objections to this
recommendation. Obj., ECF No. 13. In his objections,
Plaintiff states that he "agrees that the Complaint as
originally filed was flawed. The actual party retaliating
against Plaintiff, the International Club Homeowners
Association (referred to by Plaintiff as "IHOA")
was not named in the Complaint." Obj, p. 2. On the same
day that he filed his Objections, Plaintiff also filed a
motion to amend the complaint to omit the State of South
Carolina and the Horry County Court of Common Pleas as
defendants and to substitute the IHOA as a defendant. He also
lists Alan Wilson, Attorney General of South Carolina as
"Third Party Plaintiff". In his proposed amended
complaint, he requests declaratory and injunctive relief as
well as actual and punitive damages.
outset, it is apparent that the pro se plaintiff
misunderstands third party practice under the Federal Rules
of Civil Procedure. Under the Rules, the plaintiff names a
defendant as a party and the defendant, as a third party
plaintiff, may bring in a third party defendant who "is
or may be liable to it for all or part of the claim against
it." Fed.R.Civ.P. 14(a)(1). Also, when a claim is
asserted against a plaintiff in a lawsuit, "the
plaintiff may bring in a third party if this rule would allow
a defendant to do so." Fed.R.Civ.P. 14(b). Therefore,
the plaintiff's attempt to name Alan Wilson, Attorney
General of South Carolina, as a third party plaintiff is not
allowed by the federal rules.
Civ. P. 15 allows parties to amend their pleadings after
obtaining leave from the district court. Courts should grant
parties leave to amend freely "when justice so
requires" and the decision whether to allow an amendment
is in the discretion of the district court. Deasy v.
Hill, 833 F.2d 38, 40 (4th Cir. 1987). In considering a
motion to amend, the Court must weigh the following factors:
prejudice to the opposing party, whether the movant acted in
bad faith, whether the amendment will cause undue delay, or
if the party seeking to amend acted with a dilatory motive.
The Court must also determine whether the motion to amend was
timely. Id. In the case at bar, the opposing party
(IHOA) would not be prejudiced because it is a new party. It
does not appear that the pro se plaintiff acted in
bad faith or with a dilatory motive. The amendment would not
cause undue delay, as the lawsuit has not been served on any
defendant. The motion to amend is timely because the pro
se plaintiff requested the amendment only four days
after the issuance of the Report and Recommendation
recommending summary dismissal of the original defendants. In
deference to the fact that the plaintiff is proceeding
pro se, the Court will allow the amendment of the
complaint to dismiss the Defendants State of South Carolina
and the Horry County Court of Common Pleas; to substitute the
International Club Homeowners Association, Inc. as a
defendant; and to amend other allegations of the complaint as
contained in the proposed amended complaint (ECF No. 14). The
motion to amend is denied with respect to Plaintiff's
attempt to add Alan Wilson, Attorney General of South
Carolina, as a Third Party Plaintiff.
case is recommitted to the Magistrate Judge for prescreening
of the amended complaint and any further proceedings.
Court has thoroughly reviewed the entire record, including
the R & R and objections, and applicable law. The
Plaintiff's  motion to amend is granted as set forth
herein, and Defendants State of South Carolina and Horry
County Court of Common Pleas are dismissed. The International
Club Homeowners Association, Inc. is added as a defendant.
Plaintiff's  Motion for Temporary ...