United States District Court, D. South Carolina, Greenville Division
ORDER ADOPTING THE REPORT AND RECOMMENDATION AND
DISMISSING THE COMPLAINT WITHOUT PREJUDICE AND WITHOUT
ISSUANCE AND SERVICE OF PROCESS
GEIGER LEWIS UNITED STATES DISTRICT JUDGE
a 42 U.S.C. § 1983 action. Plaintiff is proceeding pro
se. This matter is before the Court for review of the Report
and Recommendation (Report) of the United States Magistrate
Judge suggesting the Complaint be dismissed without prejudice
and without issuance and service of process. The Report was
made in accordance with 28 U.S.C. § 636 and Local Civil
Rule 73.02 for the District of South Carolina.
Magistrate Judge makes only a recommendation to this 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 (1976).
The Court is charged with making a de novo determination of
those portions of the Report 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 with instructions. 28 U.S.C. §
636(b)(1). The Court need not conduct a de novo review,
however, “when a party makes general and conclusory
objections that do not direct the court to a specific error
in the [Magistrate Judge's] proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982); see Fed. R. Civ. P. 72(b).
Magistrate Judge filed the Report on March 29, 2017. ECF No.
13. On April 10, 2017, the Clerk of Court filed
Plaintiff's objections to the Report (Plaintiff's
Memorandum). ECF No. 15. The Court has carefully considered
the objections but holds them to be without merit. Therefore,
it will enter judgment accordingly.
document filed pro se is ‘to be liberally
construed.'” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)). Courts are not, however, required to
“conjure up questions never squarely presented to
them” or seek out arguments for a party. Beaudett
v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
construed liberally and in the light most favorable to
Plaintiff, Plaintiff's Memorandum sets forth only one
specific objection to the Report. Plaintiff appears to object
to the Magistrate Judge's recommendation Plaintiff fails
to state a claim against Defendant B.W. (B.W.) under 42
U.S.C. § 1983 because Plaintiff fails to allege state
action by B.W. for purposes of § 1983. See ECF
No. 15 at 4. Plaintiff appears to argue B.W. is a state actor
because he is employed by the State of South Carolina.
See Id. He also reasserts the allegations against
B.W. set forth in the Complaint. See id.
conclusory allegation B.W. is employed by the State is
insufficient to support a claim against B.W. under §
1983. Plaintiff's complaint alleges B.W. served as a
State witness, and Plaintiff has failed to set forth any
facts in the Complaint or his Memorandum to support a
reasonable inference B.W.'s actions complained of by
Plaintiff are fairly attributable to the State. Moreover, the
Court agrees with the Magistrate Judge's suggestion
Plaintiff's claims as a whole fail to satisfy the
pleading standard of Federal Civil Procedure Rule 8.
See ECF No. 13 at 6-7 n.2. Therefore, the Court
overrules Plaintiff's objection.
presents nothing in the remainder of his Memorandum to
convince the Court the Magistrate Judge erred in recommending
the Complaint be dismissed without prejudice and without
issuance and service of process. Apart from the objection
discussed above, the remainder of Plaintiff's Memorandum
consists of a restatement of the allegations in the
Complaint, conclusory assertions Plaintiff is objecting to
various portions of the Report, and requests for the
Complaint to be served on Defendants; any meaningful counter
to the well-reasoned conclusions in the Report is absent. In
an overabundance of caution, however, the Court has made a de
novo review of the entire record. After having done so, the
Court remains convinced dismissing the Complaint without
prejudice and without issuance and service of process is
proper. Therefore, for the reasons set forth in the Report,
the Court will overrule any additional objections to the
Report set forth in Plaintiff's Memorandum.
thorough review of the Report, Plaintiff's Memorandum,
and the record in this case pursuant to the standard set
forth above, the Court overrules Plaintiff's objections,
adopts the Report, and incorporates it herein. Therefore, it
is the judgment of the Court the Complaint is DISMISSED
WITHOUT PREJUDICE and without issuance and service of
OF RIGHT TO APPEAL
parties are hereby notified of the right to appeal this Order
within thirty days from the date hereof, pursuant to Rules 3