United States District Court, D. South Carolina, Orangeburg
ORDER AND OPINION
Timothy Wayne Gibson (“Plaintiff), proceeding in
forma pauperis, filed a pro se action pursuant to 42
U.S.C. § 1983. This matter is before the court for
review of the Magistrate Judge’s Report and
Recommendation (“Report”) (ECF No. 10), filed on
May 29, 2015, recommending that Plaintiffs Complaint (ECF No.
1) be dismissed without prejudice. For the reasons below, the
court ADOPTS the Magistrate Judge’s Report (ECF No. 10)
and DISMISSES Plaintiffs Complaint (ECF No. 1).
FACTUAL AND PROCEDURAL BACKGROUND
5, 2015, Plaintiff filed an action against the South Carolina
Department of Social Services and Jamie Posey
(“Defendants”) alleging the Greenville County
Family Court (“Family Court”) terminated his
parental rights during his incarceration without notice or
legal representation. (ECF No. 10 at 2.) Plaintiff requested
the court grant injunctive relief and order Defendants to
restore parental rights, reimburse all legal costs, and grant
a new trial. (ECF No. 1.) Plaintiff filed timely
Objections (ECF No. 12) on June 10, 2015, after the
Magistrate Judge issued a Report recommending the dismissal
of Plaintiff’s Complaint without prejudice (ECF No.
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, and the recommendation 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 is charged
with making a de novo determination of those portions of the
Report and Recommendation to which specific objections are
made, and the court may accept, reject, or modify, in whole
or in part, the Magistrate Judge’s recommendation or
recommit the matter with instructions. See 28 U.S.C.
Jurisdiction to Review Due Process Claim
Plaintiff objects and alleges that the South Carolina Court
of Appeals (“Court of Appeals”) has not issued a
final ruling on a petition for rehearing or reinstatement.
(ECF No. 12.) Accordingly, Plaintiff argues the absence of a
final decision from a state court authorizes the court to
review his § 1983 action for a violation of due process.
the Report discloses the Court of Appeals filed a final
decision as an unpublished opinion. (ECF No. 10 at 2.) On
December 30, 2014, the Court of Appeals affirmed the Family
Court order to terminate Plaintiff’s parental rights to
his minor children. (Id.) Consequently, this court
agrees with the Magistrate Judge’s recommendation to
dismiss because a federal district court cannot review or set
aside a state court ruling. (ECF No. 10 at 3-4 (citing
D.C. Ct. of Apps. v. Feldman, 460 U.S. 462, 476-82
(1983); Rooker v. Fidelity Trust Co., 263 U.S. 413,
Denial of Due Process in Family Court
Plaintiff objects and alleges he was not notified about the
Family Court preliminary proceedings and did not have legal
representation, which Plaintiff claims is a violation of the
right to procedural due process. (ECF No. 12.) The court
reviews Plaintiff’s assertion that absence of legal
representation violates his procedural due process rights
because he presents no evidence of inadequate notice.
argues “that the nature of the process due in parental
rights termination proceedings turn on a balancing of the
three distinct factors . . .” (ECF No. 12 at 2 (quoting
Lassiter v. Dep’t of Soc. Servs. Of Durham Cty.,
N.C. , 452 U.S. 18, 27 (1981)).) However, the Supreme
Court in Lassiter established that the Constitution
does not compel an appointment of counsel for indigent
parents in all parental termination proceedings.
Lassiter, 452 U.S. at 31. Instead, the trial court
decides whether due process calls for the appointment of
counsel on a case-by-case basis that is subject to appellate
review. Id. at 32 (citing Wood v. Georgia,
450 U.S. 261, 271 (1981)). This court concludes that in the
aforementioned instance there is no violation of
Plaintiff’s right to procedural due process.
on the aforementioned reasons and a thorough review of the
Magistrate Judge’s Report (ECF No. 10), the court finds
that the Report provides an accurate summary of the facts and
law. Therefore, this court ADOPTS the findings of the
Magistrate Judge’s ...