United States District Court, D. South Carolina, Florence Division
Bryan Harwell United States District Judge
Levonda Page, proceeding pro se, filed this action pursuant
to 42 U.S.C. § 1983 against the four above-captioned
Defendants. See ECF No. 1. The matter is before the
Court for review of the Report and Recommendation (“R
& R”) of United States Magistrate Judge Kaymani D.
West, made in accordance with 28 U.S.C. § 636(b)(1)(B)
and Local Civil Rule 73.02(B)(2)(e) for the District of South
Carolina. See R & R, ECF No. 11. The
Magistrate Judge recommends that the Court summarily dismiss
Plaintiff's complaint without prejudice. R & R at 6.
Plaintiff has filed objections to the R & R. See
ECF No. 15.
Magistrate Judge makes only a recommendation to the Court.
The Magistrate Judge's recommendation has no presumptive
weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The Court must conduct a de novo review
of those portions of the R & R to which specific
objections are made, and it 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. §
Court must engage in 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 [Judge]'s proposed
findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). 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).
complaint and attached supplemental pleading, Plaintiff
claims he was falsely accused of shooting a man (identified
as “Lou Allen”) on the night of May 9, 2014, on
Clara Street in Latta, South Carolina. See ECF Nos.
1 & 1-1. Plaintiff alleges police officers came to his
home on June 5, 2014, conducted a warrantless search, and
arrested him on attempted murder and firearm
charges. See ECF No. 1-1. He claims he
remained in jail for 371 days (from June 5, 2014 to June 11,
2015) until the prosecutor dropped all charges a week before
trial. Id. Plaintiff seeks monetary
damages for alleged violations of his constitutional
rights and names the following four defendants:
the State of South Carolina, the Latta Police Department, the
South Carolina Law Enforcement Division (“SLED”),
and the Dillon County Sheriff's Office (collectively,
“Defendants” or “the originally named
defendants”). Id. The Magistrate Judge
recommends summarily dismissing this action because Plaintiff
has failed to name a defendant that may properly be sued
based upon the allegations in his complaint. R & R at 3-6.
objections, Plaintiff does not challenge the Magistrate
Judge's finding that he cannot maintain claims against
the four named Defendants. Having found no clear error in the
R & R, the Court agrees with the Magistrate Judge that
these Defendants should be dismissed from this action.
See Diamond, 416 F.3d at 315 (stating a district
court need only review the magistrate judge's R & R
for clear error in the absence of specific objections).
does, however, make the following statement in his
objections: “My defendants are Lee Hayes Dillon County
Solicitor, Derrick Cartwright (Acting Chief) Latta Police
Department[, ] Andy Bethea Sled Special Agent[, ] and Troy
Jones Dillon County Sheriff.” ECF No. 15. Similarly, in
the case caption for his objections, Plaintiff lists Hayes,
Cartwright, Bethea, and Jones as the named defendants.
See ECF No. 15. The Court construes Plaintiff's
objections as a motion to amend his complaint to substitute
the newly named defendants for the originally named
defendants. See generally Erickson v. Pardus, 551
U.S. 89, 94 (2007) (stating “[a] document filed pro se
is ‘to be liberally construed'” (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976))).
[C]ourt should freely give leave [to amend] when justice so
requires.” Fed.R.Civ.P. 15(a)(2). “[A]
request to amend should only be denied if one of three facts
is present: the amendment would be prejudicial to the
opposing party, there has been bad faith on the part of the
moving party, or amendment would be futile.”
Mayfield v. Nat'l Ass'n for Stock Car Auto
Racing, Inc., 674 F.3d 369, 379 (4th Cir. 2012)
(internal quotation marks omitted). “[L]eave to amend
shall be freely given when justice so requires; this mandate
is to be heeded. If the underlying facts or circumstances
relied upon by a plaintiff may be a proper subject of relief,
he ought to be afforded an opportunity to test his claim on
the merits.” Pittston Co. v. United States,
199 F.3d 694, 705 (4th Cir. 1999) (internal quotation marks
omitted) (quoting Foman v. Davis, 371 U.S. 178, 182
supplemental pleading filed with his complaint, Plaintiff
makes extensive factual allegations relating to the four
defendants-Hayes, Cartwright, Bethea, and Jones-that he names
in his objections/motion to amend. See ECF No. 1-1.
For example, Plaintiff alleges that Hayes (an assistant
solicitor) was the prosecutor assigned to his criminal case
and kept him in jail for 371 days before dropping all charges
a week before trial; that Cartwright (an acting interim
police chief) authorized the warrantless search of his home;
that Bethea (a SLED special agent) conspired with Cartwright
to fabricate a photo lineup and have him arrested; and that
Jones (a deputy sheriff) wrongfully charged him with gun and
drug crimes. See Id. Additionally, on his complaint
form, Plaintiff indicates he wishes to sue these newly named
defendants: underneath each originally named defendant, he
also writes “prosecutor, ” “acting chief,
” “special agent, ” and “Dillon
County Sheriff.” See ECF No. 1 at 2-3.
Court finds that Plaintiff's proposed amendment would not
be prejudicial because no opposing party has been served, and
that there is no indication of bad faith on Plaintiff's
part. Although his amendment is futile as to Hayes,
amendment does not readily appear to be futile as to
Cartwright, Bethea, or Jones. Therefore, out of an abundance
of caution, the Court will grant Plaintiff's motion to
amend and permit him to substitute Cartwright, Bethea,
and Jones as the named defendants in this case. The
Court will recommit this case to the Magistrate Judge for
further screening of Plaintiff's complaint and
supplemental pleading in light of Plaintiff's newly named
defendants. See 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72; Local Civ. Rule 73.02(B)(2)(e) (D.S.C.).
Court has thoroughly reviewed the entire record, including
Plaintiff's complaint and supplemental pleading, the R
& R, and Plaintiff's objections/motion to amend.
See ECF Nos. 1, 11, & 15. The Court hereby
adopts and incorporates the R & R [ECF No. 11] by
reference and DISMISSES the State of South Carolina, the
Latta Police Department, SLED, and the Dillon County
Sheriff's Office from this action without prejudice
and without issuance and service of process. The Court
GRANTS Plaintiff's motion to amend [ECF No. 15] and
DIRECTS the Clerk of Court to SUBSTITUTE Derrick Cartwright,