United States District Court, D. South Carolina, Beaufort Division
ORDER ADOPTING THE REPORT AND RECOMMENDATION,
GRANTING DEFENDANTS BYRD AND COE'S MOTION FOR SUMMARY
JUDGMENT, DISMISSING PLAINTIFF'S CLAIMS AGAINST DEFENDANT
WILKES WITHOUT PREJUDICE, DISMISSING PLAINTIFF'S APPEALS,
AND DENYING HIS MOTION TO APPOINT COUNSEL
GEIGER LEWIS, UNITED STATES DISTRICT JUDGE
Larry James Tyler filed this case as a 42 U.S.C. § 1983
action. He is proceeding pro se and in forma pauperis. The
matter is before the Court for review of the Report and
Recommendation (Report) of the United States Magistrate Judge
suggesting Defendants Sheriff Wayne Byrd and Captain
Coe's motion for summary judgment be granted and the
claims against Defendant Diane Wilkes be dismissed. 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- and will not-consider
non-specific objections to the Report.
Magistrate Judge filed the Report on May 24, 2017, and the
Clerk of Court entered Plaintiffs objections on June 5, 2017.
The Court has reviewed the objections, but holds them to be
without merit. Therefore, it will enter judgment accordingly.
Plaintiffs submission, he generally complains about
Defendants' treatment of his migraine headaches,
Defendants' refusal to allow him a tooth extraction, and
the policies and practices of the jail in which he is housed.
But the arguments he presents are, for the most part, the
same ones he previously made to the Magistrate Judge. Because
the Court agrees with the Magistrate Judge's treatment of
these issues, it need not repeat the discussion and analysis
here. Suffice it to say these non-specific objections will be
Plaintiffs objections, however, merits a brief explanation:
the Magistrate Judge's suggestion the Court dismiss
Plaintiffs allegations against Defendant Wilkes Abased on the
evidence before this Court, " Report at 28, although she
never entered an appearance in this action. In fact, from the
Court's review of the record, it is unclear whether
Defendant Wilkes is even aware this suit is pending.
the issue before the Court is this: whether the Magistrate
Judge erred in recommending sua sponte dismissal of Plaintiff
s claims against Defendant Wilkes although she failed to join
in Defendants Byrd and Coe's motion for summary judgment;
but the medical records and evidence Plaintiff and Defendants
Byrd and Coe supplied to the Court are dispositive of the
Court's consideration of all of Plaintiff s causes of
action against Defendant Wilkes. The Court's simple
answer is, “No."
Plaintiff's objections, he neglects to argue the merits
of the Magistrate Judge's suggestion the Court dismiss
Plaintiff's accusations against Defendant Wilkes because
of Plaintiff's failure to demonstrate there is a genuine
issue of material fact on this matter. Instead, Plaintiff
contends the Marshal's failing to serve Defendant Wilkes
with his summons is violative of the Federal Rules of Civil
Fourth Circuit has long recognized the district court's
ability to dismiss an action when there is a “failure
of a complaint to state facts entitling the plaintiff to
relief[.]” Eriline Co. S.A. v. Johnson, 440
F.3d 648, 655 (4th Cir. 2006). A[T]o provide free access to
the courts without overwhelming the efficient administration
of justice with meritless cases, the system relies primarily
on the judgment of the district courts to . . . exclude suits
that have no arguable basis in law or fact." Nasim
v. Warden, Md. House of Corr., 64 F.3d 951, 954 (4th
Cir. 1995) (footnote omitted). That is exactly what the Court
is faced with here: Plaintiff's allegations against
Defendant Wilkes have “no arguable basis in law or
fact.” Id. Consequently, the Court holds
A[s]ua sponte dismissal of the complaint with respect to
[Defendant Wilkes] is appropriate here, because the issues
concerning [her] are substantially the same as those
concerning the other defendants, and [Plaintiff], the party
against whom the judgment of dismissal [is going to be]
entered, had notice and a full opportunity to make out his
claim against [Defendant Wilkes]." Hecht v. Commerce
Clearing House, Inc., 897 F.2d 21, 26 n.6 (2d Cir.
1990). Hence, the Court will overrule this objection, too.
pro se Plaintiff's submission liberally, as the Court
must do, it appears, in addition to submitting objections,
Plaintiff may be attempting to appeal certain of the
Magistrate Judge's pretrial rulings. Rule 72(a) of the
Federal Rules of Civil Procedure provides, in part,
“[a] party may serve and file objections to [a
pretrial] order within 14 days after being served with a
copy." Id. But, “[a] party may not assign
as error a defect in the order not timely objected to."
Id. Here, the pretrial orders Plaintiff takes issue
with were issued by the Magistrate Judge well over fourteen
days before his appeal. Therefore, the Court will dismiss
appears Plaintiff may be moving this Court to appoint counsel
for him in this matter. But, there is no absolute right to
appointment of counsel. The plaintiff must present
“exceptional circumstances" before the Court will
appoint counsel. Miller v. Simmons, 814 F.2d 962,
966 (4th Cir. 1987). Exceptional circumstances are present
when “it is apparent to the district court that a pro
se litigant has a colorable claim but lacks the capacity to
present it[.]" Gordon v. Leeke, 574 F.2d 1147,
1153 (4th Cir. 1978). No such situation exists here.
Consequently, the Court will deny this motion.
thorough review of the Report and the record in this case
pursuant to the standard set forth above, the Court overrules
Plaintiffs objections, adopts the Report, and incorporates it
herein. Therefore, it is the judgment of this Court
Defendants Byrd and Coe's motion for summary judgment is
GRANTED, with the caveat any state claims Plaintiff may have
against them are DISMISSED WITHOUT PREJUDICE. Plaintiffs
allegations against Defendant Wilkes are also DISMISSED
WITHOUT PREJUDICE. The Court dismisses any state causes of
action Plaintiff may have against Defendants without
prejudice so he can bring them in state court if he wishes to
as to Plaintiffs appeal of the Magistrate Judge's
pretrial rulings, those appeals are all DISMISSED as time
barred and his ...