United States District Court, D. South Carolina, Greenville Division
Gregory T. Christian, Plaintiff,
Greenville Police Officer K.A. Payne, Greenville Police Officer Andrew League, Defendants.
Timothy M. Cain United States District Judge
Gregory T. Christian, proceeding pro se, filed this
action pursuant to 42 U.S.C. § 1983 alleging a violation
of his constitutional rights. In accordance with 28 U.S.C.
§ 636(b)(1) and Local Civil Rule 73.02, D.S.C., this
matter was referred to a magistrate judge for pretrial
handling. Before the court is the magistrate judge's
Report and Recommendation (“Report”) (ECF No.
169), issued September 28, 2017, recommending that the court
grant the motions for summary judgment filed by defendant
Officer K.A. Payne (“Payne”) (ECF No. 120) and
defendant Officer Andrew League (“League”) (ECF
No. 123). Also before the court is Plaintiff's
motion, filed on October 10, 2017, to supplement his response
to defendant Payne's motion with additional evidence.
(ECF No. 172). The parties were advised of their right to
file objections to the Report. (ECF No. 169 at 13). On
October 16, 2017, Plaintiff filed objections. (ECF No. 173).
recommendations set forth in the Report have no presumptive
weight and the responsibility to make a final determination
in this matter remains with this court. See Mathews v.
Weber, 423 U.S. 261, 270-71 (1976). The court is charged
with making a de novo determination of the 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).
However, the court need not conduct a de novo review when a
party makes only “general and conclusory objections
that do not direct the court to a specific error in the
magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of a timely filed,
specific objection, the magistrate judge's conclusions
are reviewed only for clear error. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005).
magistrate judge summarized the facts of this action in his
Report. (ECF No. 169 at 2-5). Briefly, in Plaintiff's
third amended complaint, Plaintiff alleges that he was
improperly searched by officers of the City of Greenville
Police Department in violation of the Fourth Amendment to the
United States Constitution after being accused by a property
owner, Anna Healy (“Healy”), of stealing a ring
at a yard sale. (ECF No. 112). The incident occurred around
10:00 A.M. and lasted approximately 35 minutes. (ECF No.
151-3). Defendant officers arrived at the scene responding to
a 911 call placed by Healy stating that a suspect, described
as “a white male with gray hair wearing a black leather
jacket and blue jeans, ” had taken a ring from her yard
sale. Id. As noted above, Plaintiff seeks relief
pursuant to 42 U.S.C. § 1983. (ECF No. 112). In his
original complaint, Plaintiff named the City of Greenville
(“City”) as the only defendant. (ECF No. 1).
Subsequently, on July 7, 2016, Plaintiff was permitted to
amend his complaint in order to add defendant Payne. (ECF No.
22). On January 26, 2017, the court dismissed Plaintiff's
claims against City. (ECF No. 87). On May 1, 2017,
Plaintiff's fifth motion to amend was granted in order to
permit him to file his third amended complaint and add League
as a defendant. (ECF No. 111).
16, 2017, defendant Payne filed a motion for summary
judgment. (ECF No. 120). On May 17, 2017, defendant League
filed a motion to dismiss or alternatively a motion for
summary judgment. (ECF No. 123). On September 28, 2017, the
magistrate judge filed a Report recommending that
defendants' motions for summary judgment (ECF Nos. 120
and 123) be granted. (ECF No. 169). After the Report was
filed, Plaintiff filed a motion to supplement his response to
Payne's summary judgment motion with additional evidence,
on October 10, 2017. (ECF No. 172). Subsequently, on October
16, 2017, Plaintiff filed objections to the Report. (ECF No.
173). Defendants filed a response in opposition to
Plaintiff's motion (ECF No. 175) and to Plaintiff's
objections (ECF No. 177). Plaintiff filed a reply to
Defendants' response. (ECF No. 178).
A. Plaintiff's Motion to Supplement his Response
with Additional Evidence
Plaintiff filed a motion to supplement his response to
Payne's motion for summary judgment with additional
evidence on October 10, 2017 (ECF No. 172), twelve days after
the magistrate judge filed his Report. In Tyson v.
Ozmint, No. 6:06-0385-PMD-WMC, 2006 WL 3139682, at *3
(D.S.C. Oct. 31, 2006), this court noted that 28 U.S.C.
§ 636(b)(1) permitted a district court to receive
additional evidence when ruling on objections to a Report and
Recommendation. “However, this court is not required to
consider any evidence that was not before the magistrate
judge.” Tyson, 2006 WL 3139682, at *3. In
Virgin Enters. Ltd. v. Virgin Cuts, Inc.,
149 F.Supp.2d 220, 223-24 (E.D. Va. 2000), the court
explained why the consideration of additional evidence is not
While there may be cases in which receipt of further evidence
is appropriate, there are substantial reasons for declining
to do so as a general matter. First, permitting piecemeal
presentation of evidence is exceptionally wasteful of time of
both the magistrate and district judges, the former having
been compelled to write an arguably useless report based on
less than the universe of relevant evidence and the latter
being deprived of the benefit of the magistrate judge's
considered view of the record. Second, opposing parties would
be put to the burden of proceedings which, to a considerable
degree, would be duplicative. Third, there would be instances
in which parties would be encouraged to withhold evidence,
particularly evidence which might be embarrassing as well as
helpful on the merits, in the expectation of using it before
the district judge only if they fail to prevail before the
magistrate judge on a more abbreviated showing. Finally,
routine consideration of evidence in support of objections
which could have been presented before the magistrate judge
would reward careless preparation of the initial papers.
Virgin Enters. Ltd., 149 F.Supp.2d at 223-24
(quoting Morris v. Amalgamated Lithographers of
America, 994 F.Supp. 161, 163 (S.D.N.Y. 1998)).
case, both parties have repeatedly referenced and quoted the
in-car audio recording of the encounter (ECF Nos. 120-1,
123-1, 151), however, as noted by the magistrate judge, the
audio recording was never submitted by any party. (ECF No.
169 at 5). Both parties have access to the audio and neither
party objects to the validity of the recording. (ECF No. 172
at 2). Plaintiff alleges that he misunderstood the proper
method for incorporation of an audio recording to the record.
(ECF No. 172 at 2). In his later reply (ECF No. 178) he
refers to and discusses Federal Rule of Civil Procedure
15(a), however, such rule is inapplicable to the present
object to the supplementation of the record at this late
juncture and argue that Plaintiff's reason is
insufficient, that Plaintiff had numerous earlier
opportunities to submit a transcript or the audio itself,
that Plaintiff could have requested an extension to respond
further to the summary judgment motions prior to the filing
of the Report, and that Defendants would be prejudiced by not
having the opportunity to inspect the “professionally
prepared transcript” before its filing. (ECF No. 175).
Because both parties had access to the audio recording for a
significant portion of this litigation,  the extremely
late filing of the transcript weighs strongly against
admission. Moreover, allowing a party to provide additional
evidence only after receiving an unfavorable recommendation
weighs against judicial economy and fairness. See Virgin
Enters. Ltd., 149 F.Supp.2d at 223-24. Further, without
submission of the actual audio, the court has no means of
determining the validity of the transcript, which was
submitted as a copy with no signed certification by the
transcriber. Accordingly, based on the foregoing, and in the
interest of fairness to both parties and judicial economy,
the court must deny Plaintiff's motion at this time.