United States District Court, D. South Carolina, Florence Division
Bryan Harwell United States District Judge
Joseph Martin Swaringen, proceeding pro se,  filed this action
pursuant to 42 U.S.C. § 1983 against the 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 Thomas E.
Rogers, III, made in accordance with 28 U.S.C. §
636(b)(1)(B) and Local Civil Rule 73.02 for the District of
South Carolina. See R & R, ECF No. 14. The
Magistrate Judge recommends that the Court summarily dismiss
Plaintiff's complaint without prejudice and without
issuance and service of process. R & R at 8-9.
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, Plaintiff alleges that “within 24 hours of
[his] arrest, ” Defendant Rosier placed him “in
lock up for 72 hours” and additionally placed him
“on ‘administrative separation'” in the
Greenville County Detention Center. ECF No. 1 at 5; ECF No.
1-1 at 4-5. Plaintiff claims Defendant Rosier's actions
“impeded” and “denied” him of his
“right to counsel” because he was “not
allowed to call counsel prior to [his] bond hearing.”
Id. The Magistrate Judge recommends summarily
dismissing Plaintiff's complaint because it fails to
state a plausible claim against the named Defendants. R &
R at 3, 8-9. Of relevance here, the Magistrate Judge notes
Plaintiff's apparent claim that Defendant Rosier deprived
him of his Sixth Amendment right to counsel. Id. at
1, 4-6 (“Plaintiff fails to plead facts indicating the
attachment of his Sixth Amendment right to counsel prior to
his bond hearing.”).
the Court notes Plaintiff has not filed objections to the R
& R or otherwise challenged the Magistrate Judge's
interpretation of the allegations in his complaint. 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).
has, however, filed a motion to amend his complaint.
See ECF No. 22. He states he “is a lay person
st[r]uggling with the proper presentation of his claim,
The denial of access to counsel in a timely manner prior to
the bond hearing did constitute a denial of due process. The
Plaintiff was denied his right to counsel at an adversarial
hearing which resulted in the loss of liberty. Furthermore,
the Plaintiff was denied access to counsel at a very critical
time - immediately following arrest when critical exculpatory
evidence was lost - all while agents of the state were
seeking to preserve inculpatory evidence. ANY action which
inhibits an accused person[']s timely access to counsel
violates that person[']s Due Process rights.
Id. at 1 (emphases added). Plaintiff further
asserts, “The actual injury in this being the denial of
bail and the loss of his ability to present an effective
defense due to the loss of critical exculpatory
evidence.” Id. at 2. Based on his motion to
amend, it appears Plaintiff is addressing his claim regarding
the denial of access to counsel.
reviewed the factual allegations in Plaintiff's complaint
and motion to amend, the Court finds amendment of
Plaintiff's complaint would be futile. As the Magistrate
Judge explains in the R & R, the Sixth Amendment
“right to counsel attaches only at or after the
initiation of adversary judicial proceedings against the
defendant.” United States v. Gouveia, 467 U.S.
180, 187 (1984) (emphasis added); see also Rothgery v.
Gillespie Cty., 554 U.S. 191, 198, 208-09 (2008)
(discussing Gouveia and explaining “initiation
of adversary judicial criminal proceedings” means
“by way of formal charge, preliminary hearing,
indictment, information, or arraignment”). Based on his
motion to amend, Plaintiff apparently believes his right to
counsel attached immediately after his arrest
and before the bond hearing while he was in jail. This
belief is incorrect. See Gouveia, 467 U.S. at 190
(“[W]e have never held that the right to counsel
attaches at the time of arrest.”); United States v.
Alvarado, 440 F.3d 191, 200 (4th Cir. 2006)
(“[T]he right to counsel does not attach immediately
after arrest and prior to arraignment.”).
best, Plaintiff's right to counsel attached “only
at or after the” bond hearing. See Gouveia,
467 U.S. at 187; State v. Wilder, 306 S.C. 535, 538,
413 S.E.2d 323, 324 (1991) (“Wilder's sixth
amendment right to counsel attached at the initial bond
hearing . . . .”). His right to counsel did not attach
earlier at the time of his arrest and immediate confinement
in jail, so he cannot claim Defendant Rosier deprived him of
any such right by placing him in isolated confinement
before the bond hearing.See, e.g.,
Gouveia, 467 U.S. at 192 (“We conclude that
the Court of Appeals was wrong in holding that respondents
were constitutionally entitled to the appointment of counsel
while they were in administrative segregation and before any
adversary judicial proceedings had been initiated against
them.”); Allen v. Ballard, No. CIV.A.
1:06-0597, 2009 WL 669273, at *30 (S.D. W.Va. Mar. 11, 2009)
(finding the petitioner's “Sixth Amendment right to
counsel did not attach at [the] time of his arrest . . .,
which was prior to his presentment before the magistrate