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Niblock v. Perry

United States District Court, D. South Carolina

March 23, 2018

Sharne Louise Niblock, Plaintiff,
v.
Officer Deputy Perry; Angela Nazzery-Scott; Shanett Smith; and Barbretta Cook, Defendants.

          ORDER AND OPINION

          Richard Mark Gergel, United States District Court Judge

         This 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.

         I. Background

         Sharne 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.)

         II. Relevant Facts

         The Court adopts the facts as outlined by the Magistrate Judge in the R. & R. (Dkt. No. 64 at 2-5.)

         III. Legal Standards

         A. Pro Se Pleadings

         This 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).

         B. Magistrate Judge's Report and Recommendation

         The 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).

         IV. Discussion

         A. Defendant Perry

         Liberally 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 ...


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