United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
RICHARD MARK GERGEL, UNITED STATES DISTRICT COURT JUDGE
matter is before the Court on the Report and Recommendation
of the Magistrate Judge, recommending that the complaint be
summarily dismissed without service of process. For the
reasons set forth below, the Court adopts in part and
declines to adopt in part the Report and Recommendation. The
complaint is dismissed with prejudice. This dismissal counts
as a strike under the Prison Litigation Reform Act
is detained on pending state charges at the Berkeley County
Detention Center. Plaintiff was arrested on April 9, 2017,
and is charged with vehicular hit and run, domestic violence
of a high and aggravated nature (two counts), possession of a
weapon during a violent crime, and intimidation of witnesses.
Plaintiff filed this action under § 1983 on October 5,
2017 against nine defendants. Two defendants are private
persons. Seven defendants are law enforcement officers.
complains that he was "detained by the Hanahan Police
Officers ... for a crime (hit and run) that I didn't
commit." (Dkt. No. 1 at 7.) He asserts that Defendants
Lamphere, Ellwood, and Scott (all law enforcement officers)
coerced Defendant Katherine McKeithan into giving an untrue
statement about the hit and run incident under investigation,
and that Defendant Lamphere coerced Defendant Katherine
McKeithan and her daughter, Defendant Christine Riley, into
giving false statements about Plaintiffs acts of domestic
violence. Plaintiff also complains that at a preliminary
hearing on July 28, 2017, Defendant Lamphere
"allowed" Christine Riley to testify that Plaintiff
had assaulted her with a knife on April 9, 2017. Plaintiff
complains that because this statement was false, he has been
incarcerated since April 9, 2017 on "invalid
warrants" in violation of the Fourteenth Amendment. For
relief, Plaintiff seeks monetary damages of $10, 000.00 from
each defendant. The Magistrate Judge recommended summary
dismissal on October 13, 2017. Defendant filed objections to
the Report and Recommendation.
Report and Recommendation
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. Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination
of those portions of the Report and Recommendation to which
specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation of the
Magistrate Judge. 28 U.S.C. § 636(b)(1).
proper objection is made to a particular issue, "a
district court is required to consider all arguments directed
to that issue, regardless of whether they were raised before
the magistrate." United States v. George, 971
F.2d 1113, 1118 (4th Cir. 1992). 'However, "[t]he
district court's decision whether to consider additional
evidence is committed to its discretion, and any refusal will
be reviewed for abuse." Doe v. Chao, 306 F.3d
170, 183 & n.9 (4th Cir. 2002). "[A]ttempts to
introduce new evidence after the magistrate judge has acted
are disfavored, " though the district court may allow it
"when a party offers sufficient reasons for so
doing." Caldwell v. Jackson, 831 F.Supp.2d 911,
914 (M.D. N.C. 2010) (listing cases).
Prisoner Litigation Reform Act
action been filed in forma pauperis under 28 U.S.C.
§ 1915, which permits an indigent litigant to commence
an action in federal court without payment of costs. The
statute allows a district court to dismiss summarily an
action that "fails to state a claim on which relief may
be granted, " "is frivolous or malicious, " or
"seeks monetary relief against a defendant who is immune
from such relief." 28 U.S.C. § 1915(e)(2)(B).
"With the Prisoner Litigation Reform Act
("PLRA"), Congress sought to reduce the number of
frivolous lawsuits flooding the federal courts."
Blakelyv. Wards, 738 F.3d 607, 609 (4th Cir. 2013).
"Congress did so in part by enacting 28 U.S.C. §
1915(g), a "three-strikes" statute providing that
if a prisoner has already had three cases dismissed as
frivolous, malicious, or for failure to state a claim for
which relief may be granted, the prisoner generally may not
proceed in forma pauperis but rather must pay
up-front all filing fees for his subsequent suits."
Court agrees that the complaint fails to state a claim
against any Defendant for all the reasons set forth in the
Report and Recommendation. Plaintiffs state-law claims of
defamation, negligence are not actionable under § 1983.
Defendants Katherine McKeithan and Christine Riley-private
persons reporting crimes-are not state actors subject to suit
under § 1983. A witness may not be sued under §
1983 for testimony given in a judicial proceeding.
Briscoe v. LaHue,460 U.S. 325, 335 (1983).
Plaintiff fails to allege any wrongful act by Defendants
Burk, Blackmon, Brooks, or Hancock. Plaintiff was arrested
pursuant to arrest warrants, and under § 1983, a law
enforcement officer "cannot be charged with false arrest
when he arrests a defendant pursuant to a facially valid
warrant." Por ...