United States District Court, D. South Carolina, Anderson/Greenwood Division
Jerome Swinton, Sr., Plaintiff, Pro Se.
Charleston County, Defendant, represented by Christopher
Thomas Dorsel, Senn Legal, Kevin Michael DeAntonio, Senn
Legal & Sandra Jane Senn, Senn Legal.
Foley, Defendant, represented by Amanda Kurzen Dudgeon,
Chandler and Dudgeon.
Frederick Overton, Defendant, represented by Amanda Kurzen
Dudgeon, Chandler and Dudgeon.
REPORT AND RECOMMENDATION OF MAGISTRATE
JACQUELYN D. AUSTIN, Magistrate Judge.
matter is before the Court on a motion to dismiss filed by
Defendant Charleston County [Doc. 32] and a motion for
inquiry filed by Plaintiff [Doc. 59]. Plaintiff is proceeding
pro se and brought this civil rights action pursuant to 42
U.S.C. Â§ 1983. Pursuant to the provisions of 28 U.S.C. Â§
636(b)(1)(B) and Local Civil Rule 73.02(B)(2), D.S.C., this
magistrate judge is authorized to review all pretrial matters
in cases filed under 42 U.S.C. Â§ 1983 and to submit findings
and recommendations to the District Court.
case involves Plaintiff's allegedly unlawful extradition
from South Carolina to Arizona. On October 30, 2015, the
undersigned filed a Report and Recommendation ("R &
R") recommending that the instant action be summarily
dismissed. [Doc. 10.] On December 15, 2015, the R & R was
adopted in part, and recommitted to the undersigned for
further consideration. [Doc. 14.] Specifically, the Court
ordered that all claims against J. Al Cannon Jr. be
dismissed, all federal claims against Charleston County be
dismissed, Plaintiff's Â§ 1985 claims against John Doe I
and John Doe II be dismissed, and Plaintiff's declaratory
judgment claim be dismissed. [ Id. ] The Court
recommitted the matter to the undersigned to determine
whether Plaintiff has stated a plausible Â§ 1983 claim against
John Does I and II. [ Id. at 11, 14.] Further, the
Court directed the undersigned to consider whether Plaintiff
has adequately pled his state-law claims only if the
undersigned determines that any of Plaintiff's Â§ 1983
claims should not be dismissed. [ Id. at 13-14.]
February 19, 2016, Charleston County moved the Court to
dismiss it from the present action because John Doe I and
John Doe II had not been served and the only causes of action
remaining against the County are state-law claims over which
the Court should decline to exercise supplemental
jurisdiction. [Doc. 32.] In the alternative, Charleston
County argues Plaintiff has failed to state a claim against
it. [ Id. ]
was granted an extension of time to accomplish service of
process on John Does I and II. [Docs. 41, 45.] Plaintiff
learned the identity of the John Does and substituted Ross
Foley and Frederick Overton as Defendants. [Docs. 43, 45.]
Defendants Foley and Overton were served on June 2, 2016, and
the summonses were returned executed on June 21, 2016. [Docs.
62, 63.] Because counsel was retained the same week
Defendants Foley and Overton's responsive pleadings were
due, an extension of time was granted, and Foley and
Overton's responsive pleadings are currently due on July
14, 2016. [Docs. 64, 65.]
time, the undersigned finds that in the interest of judicial
efficiency, Charleston County's motion to dismiss [Doc.
32] should be dismissed, with leave to refile after
Defendants Foley and Overton's responsive pleadings are
filed so that the Court may first determine whether Plaintiff
has stated a plausible Â§ 1983 claim before addressing the
state-law claims. [ See Doc. 14 at 13-14.] Further,
Plaintiff's motion for inquiry on Roseboro Order
[Doc. 59], inquiring as to the status of a scheduling order,
should be found as moot.
based upon the foregoing, the Court recommends that Defendant
Charleston County's motion to dismiss [Doc. 32] be
DISMISSED WITH LEAVE TO REFILE. It is further recommended
that if the Court adopts this recommendation, that Defendant
Charleston County be directed to refile its motion to dismiss
within twenty days of the Court's Order. Further, the
Court recommends Plaintiff's motion for inquiry on
Roseboro Order [Doc. 59] be FOUND AS MOOT.