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Page v. State

United States District Court, D. South Carolina, Florence Division

January 12, 2017

Levonda Page, Plaintiff,
State of South Carolina, Latta Police Department, SLED, and Dillon County Sheriff's Office, Defendants.


          R. Bryan Harwell United States District Judge

         Plaintiff 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.[1] 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.

         Standard of Review

         The 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. § 636(b)(1).

         The 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).


         In his 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.[3] 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.[4] Id. Plaintiff seeks monetary damages for alleged violations of his constitutional rights[5] 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.[6] R & R at 3-6.

         In his 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).

         Plaintiff 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))).

         “The [C]ourt should freely give leave [to amend] when justice so requires.” Fed.R.Civ.P. 15(a)(2).[7] “[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 (1962)).

         In the 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[8]) 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.

         The 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, [9] 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.).


         The 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, ...

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