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Christian v. Payne

United States District Court, D. South Carolina, Greenville Division

February 28, 2018

Gregory T. Christian, Plaintiff,
Greenville Police Officer K.A. Payne, Greenville Police Officer Andrew League, Defendants.


          Timothy M. Cain United States District Judge

         Plaintiff, 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).[1] 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).

         The 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).

         I. BACKGROUND

         The 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).

         On May 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.[2] (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 favored:

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)).

         In this 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 circumstance.

         Defendants 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, [3] 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.

         B. Report ...

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