United States District Court, D. South Carolina
ORDER AND OPINION
Richard Mark Gergel, United States District Court Judge
matter is before the Court on the Report and Recommendation
("R. & R.") of the Magistrate Judge (Dkt. No.
64) recommending that this this Court (1) grant
Defendants' motion to dismiss and motion for summary
judgment and (2) dismiss Defendant Perry from this action.
For the reasons set forth below, the Court adopts the R.
& R. as the order of the Court.
Louise Niblock ("Plaintiff), proceeding pro se
and in forma pauperis, filed this civil rights
action pursuant to 42 U.S.C. § 1983, alleging violations
of her constitutional rights. She sues Richland County Deputy
Perry ("Perry") and three former employees of the
South Carolina Department of Social Services: Angela
Nazzery-Scott ("Nazzery-Scott"), Shanett Smith
("Smith"), and Barbretta Cook ("Cook")
(collectively "SCDSS Defendants"). Liberally
construing her amended complaint, Plaintiff alleges that
Defendants violated her constitutional rights in connection
with a child custody action when (1) Perry took her two
younger sons into Emergency Protective Custody; (2) Smith and
Nazzery-Scott advised her that she had to follow the
recommendations of SCDSS; and (3) the Family Court granted
custody to her children's father at a hearing where
Plaintiff was not present because she had not been personally
served with notice of the hearing, though her attorney had
been served on her behalf. (Dkt. No. 17 at 5- 6.) Defendants
Nazzery Scott, Shanett Smith, and Barbretta Cook have filed a
motion to dismiss for lack of subject matter jurisdiction and
failure to state a claim. (Dkt. No. 59.) Defendants have also
moved for summary judgment on any federal claims brought
under 42 U.S.C. § 1983. (Id.)
Court adopts the facts as outlined by the Magistrate Judge in
the R. & R. (Dkt. No. 64 at 2-5.)
Pro Se Pleadings
Court liberally construes complaints filed by pro se
litigants to allow the development of a potentially
meritorious case. See Cruz v. Beto, 405 U.S. 319
(1972); Haines v. Kerner, 404 U.S. 519 (1972). The
requirement of liberal construction does not mean that the
Court can ignore a clear failure in the pleadings to allege
facts which set forth a viable federal claim, nor can the
Court assume the existence of a genuine issue of material
fact where none exists. See Weller v. Dep't of Social
Services, 901 F.2d 387 (4th Cir. 1990).
Magistrate Judge's Report and Recommendation
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility for making a final determination remains with
this Court. See Mathews v. Weber, 423 U.S. 261,
270-71 (1976). This Court is charged with making a de
novo determination of those portions of the Report and
Recommendation to which specific objection is made.
Additionally, the Court may "accept, reject, or modify,
in whole or in part, the findings or recommendations made by
the magistrate judge." 28 U.S.C. § 636(b)(1).
construing Plaintiffs complaint, she claims that Defendant
Perry violated her constitutional rights when he took her two
youngest children into Emergency Protective Custody. The
Magistrate Judge recommended that this Court dismiss
Defendant Perry from this action because the state court
found probable cause existed for ...