United States District Court, D. South Carolina, Beaufort Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE Senior United States District Judge
matter is before the court on Plaintiff's pro se
complaint, filed in this court pursuant to 42 U.S.C. §
1983, alleging Defendants violated his constitutional rights
by denying him mental health treatment and access to a
grievance procedure at Pickens County Detention Center while
he was a pretrial detainee. ECF No. 1. On November 28, 2016,
Plaintiff entered a request for default as to Defendant Clark
(ECF No. 23), who had not filed a responsive pleading, and
the Clerk entered default as to this defendant (ECF No. 24).
Plaintiff also filed a motion for default judgment as to
Defendant Clark. ECF No. 25. Defendant Clark filed a motion
to set aside default the next day. ECF No. 27. Plaintiff
filed a response in opposition on December 6, 2016. ECF No.
35. Defendant Clark filed a reply on January 3, 2017. ECF No.
December 1, 2016, Defendant Bree filed a motion for summary
judgment. ECF No. 28. A Roseboro Order was mailed to
Plaintiff on December 2, 2016, advising him of the importance
of a dispositive motion and the need to file an adequate
response. ECF No. 29. On December 5, Defendants Lori, Pipes,
Sellman, and Southern Health Partners filed a motion for
summary judgment. ECF No. 31. A second Roseboro
order was mailed to Plaintiff on December 6, 2016. ECF No.
32. Defendant Clark filed a motion to dismiss for lack of
jurisdiction and failure to state a claim on December 6,
2016. ECF No. 34. Plaintiff filed a motion for extension of
time to respond to the motions for summary judgment and for
lack of jurisdiction/failure to state a claim on January 11,
2017. ECF No. 37. Although this was granted, Plaintiff filed
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 (B)(2)(d), DSC, this matter was referred to United
States Magistrate Judge Bristow Marchant for pre-trial
proceedings and a Report and Recommendation
(“Report”). On January 31, 2017, the Magistrate
Judge issued a Report recommending that Defendant Clark's
motion to set aside default be granted, Plaintiff's
motion for entry of default judgment be denied,
Defendants' summary judgment motions be granted and
Defendant Clark's motion to dismiss be deemed moot. ECF
No. 41. The Magistrate Judge advised Plaintiff of the
procedures and requirements for filing objections to the
Report and the serious consequences if he failed to do so.
Plaintiff has filed no objections and the time for doing so
has expired, and Plaintiff's copy of the Report has not
been returned to the court.
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
court. See Matthews v. Weber, 423 U.S. 261 (1976).
The court is charged with making a de novo
determination of any portion of the Report of the Magistrate
Judge to which a specific objection is made. The court may
accept, reject, or modify, in whole or in part, the
recommendation made by the Magistrate Judge or recommit the
matter to the Magistrate Judge with instructions.
See 28 U.S.C. § 636(b). The court reviews the
Report only for clear error in the absence of an objection.
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that
“in the absence of a timely filed objection, a district
court need not conduct a de novo review, but instead
must only satisfy itself that there is no clear error on the
face of the record in order to accept the
recommendation.”) (citation omitted).
reviewing the complaint, the motions and any responses, the
applicable law, and the Report and Recommendation of the
Magistrate Judge, the court finds no clear error in the
Report's reasoning. Accordingly, the Report and
Recommendation of the Magistrate Judge is adopted and
incorporated by reference, except to the extent it converts
Defendant Clark's motion to dismiss (ECF No. 34) to a
motion for summary judgment.
Clark was never properly served; therefore, the court does
not have personal jurisdiction over him. The summons executed
as to Defendant Clark filed in the record shows that Lt.
Kristie Leopard was the individual served with process at
Pickens County Jail. ECF No. 14. As Plaintiff did not file a
response to Defendant Clark's motion to dismiss or
objections to the Report, the court has no basis from which
to determine if Plaintiff served Defendant Clark, either in
his official capacity as Sheriff of Pickens County or in his
individual capacity. See Combs v. Bakker,
886 F.2d 673, 676 (4th Cir. 1989) (“When a court's
personal jurisdiction is properly challenged by a Rule
12(b)(2) motion, the jurisdictional question thus raised is
one for the judge, with the burden on the plaintiff
ultimately to prove the existence of a ground for
jurisdiction by a preponderance of the evidence. . . . when,
as here, the court addresses the question on the basis only
of motion papers, supporting legal memoranda and the relevant
allegations of a complaint, the burden on the plaintiff is
simply to make a prima facie showing of a sufficient
jurisdictional basis in order to survive the jurisdictional
challenge.”) Plaintiff has failed to carry his burden.
Therefore, proper service was not effectuated as to Defendant
Clark. The court finds that Defendant Clark's motion to
dismiss for lack of jurisdiction should be granted.
Clark's motion to set aside entry of default is granted,
Plaintiff's motion for entry of default judgment is
denied, Defendants Bree, Lori, Pipes, Sellman, and Southern
Health Partners' motions for summary judgment are
granted, and those defendants are dismissed with prejudice.
Defendant Clark's motion to dismiss for lack of
jurisdiction is granted, and he is dismissed without
 Plaintiff did file a notice of change
of address on January 19, 2017. ECF No. 40.
 Plaintiff has now been released from
custody. He submitted an address change to the court in
advance of the filing of the Report. The Report was sent to
that new address and was not returned.
 When a motion to dismiss is converted
to a motion for summary judgment, “all parties shall be
given reasonable opportunity to present all material made
pertinent to such a motion by Rule 56.” Gay v.
Wall, 761 F.2d 175, 177 (4th Cir. 1985). A
‘reasonable opportunity' requires that all parties
be given an indication by the court that it intends to treat
the motion as one for summary judgment, “with the