United States District Court, D. South Carolina, Florence Division
Bryan Harwell United States District Judge
LeVance Addison, proceeding pro se, brought this
action pursuant to 42 U.S.C. § 1983 alleging that
Defendants violated his due process rights because he was not
served with a warrant for his alleged criminal acts, and he
was not provided a probable cause hearing. [ECF #1, p. 5].
His stated claims for relief are due process of law, false
imprisonment, color of state, and illegal transfer. [ECF #1,
p. 5]. This matter is before the Court after issuance of the
Report and Recommendation (“R&R”) of United
States Magistrate Judge Thomas E. Rogers, filed on August 24,
2016. [ECF #9]. This matter was referred to the Magistrate
Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Civil
Rule 73.02(B)(2)(e). In the R&R, the Magistrate Judge
recommends summary dismissal of Plaintiff's Complaint. On
September 12, 2016, Plaintiff filed a motion to amend/correct
his complaint [ECF #12]. That same day, Plaintiff filed a
document titled “Response to Report and Recommendation,
” which this Court will construe as Plaintiff's
objections to the R&R. This matter is now before the
Court for review.
filed this action pursuant to 42 U.S.C. § 1983 on August
15, 2016, naming Sheriff Kenny Boone and Sheriff Wayne
as Defendants in their official capacities. [ECF #1, pp.
2-3]. He alleges that on June 29, 2016, he was arrested for
check fraud by the Florence County Police Department. [ECF
#1, p. 5]. While being questioned regarding this incident, he
claims an individual named Neil Cusack with the Darlington
County Investigator's office was called regarding pending
charges in Darlington County. [ECF #1, p. 5]. Plaintiff
further alleges that he was turned over to Mr. Cusack and
taken to the Darlington County Detention Center. [ECF #1, p.
5]. Plaintiff alleges that because he was not served with a
warrant for the arrest in Florence County, and further, was
not allowed the right to request a probable cause hearing,
Defendants violated his due process rights. [ECF #1, p. 5].
The relief he requests is for the State to “follow
rules of law when probable cause hearing and warrant has not
been served within the required time.” [ECF #1, p. 9].
August 24, 2016, the Magistrate Judge issued his R&R
recommending summary dismissal of Plaintiff's claims
against Kenny Boone and Wayne Byrd because Plaintiff's
complaint is deficient in that he does not demonstrate these
officers personally caused or played a role in the
deprivation of any federal right. [ECF #9, p. 5]. The
Magistrate Judge makes this recommendation based on the fact
that Plaintiff failed to allege any facts suggesting these
Defendants had a role in any alleged harm or should otherwise
be subject to liability based on their roles as superiors in
the department pursuant to §1983.
September 12, 2016, Plaintiff filed his response to the
R&R. Within that response, Plaintiff alleges that he was
not arrested or given a bond related to fraud charges
stemming from his actions on June 14, 2016 in Darlington,
which contradicts the information in the public records cited
in the R&R. [ECF #11, p. 1]. Further, Plaintiff includes
public documents attached to his motion to amend complaint,
which shows a warrant issued for that incident, as well as a
hearing notice to appear in court for several fraud charges.
[ECF #13-1, p. 1]. Plaintiff further disputes the fact that
he has not made out a cognizable claim against Sheriff Byrd
because he alleges that he stated in his Complaint that Mr.
Cusack “received Plaintiff out of Florence County into
Darlington County, ” and Sheriff Byrd is Mr.
Cusack's superior. [ECF #11, p. 2]. Similarly, he alleges
that Officer Bandister in the Florence County Sheriff's
office, handed over the Plaintiff to Officer Cusack, and that
Sheriff Kenny Boone is his superior.[ECF #11, p. 2]. Thus, he
believes that the fact that these two Defendants are
superiors in their respective department proves the causal
connection to establish supervisory liability in a §
1983 action as contemplated by Shaw v. Stroud, 13
F.3d 791, 499 (4th Cir. 1994). It appears Plaintiff also
argues that he notified both Defendants of the alleged due
process violations via letter, but they did not respond,
constituting “deliberate indifference” to his
rights. [ECF #11, p. 3]. Plaintiff also filed a Motion to
Amend Complaint on September 12, 2016. [ECF #13]. Within this
pleading, he seeks to add Investigator Bandister as a
Defendant. [ECF #13, p. 1]. Plaintiff alleges within this
pleading that he sent a letter to both Sheriff Boone and
Sheriff Byrd notifying them that his rights were allegedly
violated because he was not served a warrant or given a
preliminary hearing in Florence County. [ECF #13, p. 2].
Plaintiff further alleges that he wrote Florence County
Magistrate Judge Cooper on July 29, 2016 to inform him that
his rights were being violated, but he did not receive a
reply. [ECF #13, p. 2]. Thus, he also seeks to add Judge
Cooper as a Defendant, as well.
Review of the Magistrate Judge's Report &
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 and
recommendation 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 to the Magistrate Judge with instructions. 28 U.S.C.
§ 636(b)(1). The right to de novo review may be
waived by the failure to file timely objections. Orpiano
v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The
district 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 [C]ourt to a specific error in the
[M]agistrate's proposed findings and
recommendations.” Id. In the absence of
specific objections to the R & R, the Court reviews only
for clear error, Diamond v. Colonial Life & Acc. Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court
need not give any explanation for adopting the Magistrate
Judge's recommendation. Camby v. Davis, 718 F.2d
198, 199-200 (4th Cir. 1983).
Defendants Boone and Byrd
Court agrees with the Magistrate Judge that Plaintiff fails
to state a plausible claim against these two sheriffs in this
lawsuit. Plaintiff names these two individuals in the lawsuit
because he alleges they are the superiors to the officers who
allegedly violated his rights. First, in South Carolina, a
sheriff and his deputies are considered state officials.
Cone v. Nettles, 308 S.C. 109, 417 S.E.2d 523,
523-25, (S.C. 1992). A suit against a sheriff in federal
court, brought in his official capacity, is barred by the
Eleventh Amendment. McConnell v. Adams, 829 F.2d
1319, 1328-29 (4th Cir. 1987); see also Wyatt v.
Fowler, 326 S.C. 97, 484 S.E.2d 590, 593 (S.C. 1997)
(“a sheriff is not liable in his official capacity
under §1983"). Accordingly, Plaintiff's claims
against these individuals should be summarily dismissed.
these sheriffs were sued in their individual capacity,
Plaintiff's claims would still fail. Generally, vicarious
liability or respondeat superior is not an available avenue
of relief under §1983. Monell v. Dep't Soc.
Servs., 436 U.S. 658, 694 (1978). However, in Shaw
v. Stroud, the Fourth Circuit outlines a limited
exception to this prohibition provided the following three
part test is met: (1) actual or constructive knowledge that a
supervisor's subordinate was engaged in conduct posing a
“pervasive or unreasonable risk” of
constitutional injury; (2) the response to that knowledge was
so inadequate as to show “deliberate indifference to or
tact authorization of the alleged offensive practices; and
(3) there is an “affirmative causal link” between
the supervisor's inaction and the injury suffered by
plaintiff. 13 F.3d 791, 799 (4th Cir. 1994).
only allegation wherein he tries to connect the sheriffs to
the incident in question is that he wrote a letter after the
incident occurred explaining to them what happened, but he
never received a response from either sheriff. This
allegation does not suffice to meet the standard set forth
above. Furthermore, Plaintiff's claimed injury is loss of
liberty; however, he is apparently being held in Darlington
County for charges that are pending in that case, as opposed
to the charges related to the Florence County arrest. Thus,
based on the bare allegations alleged in this case, this
Court agrees with the ...