United States District Court, D. South Carolina, Greenville Division
BRYAN HARWELL, UNITED STATES DISTRICT JUDGE.
Olandio Ray Workman, a state pretrial detainee proceeding pro
se, filed this action pursuant to 42 U.S.C. § 1983.
See ECF No. 1. The matter is before the Court for
consideration of Plaintiff's objections to the Report and
Recommendation (“R & R”) of United States
Magistrate Judge Kevin F. McDonald, who recommends summarily
dismissing this action without prejudice. See ECF
Nos. 13 & 15.
Magistrate Judge makes only a recommendation to the Court.
The Magistrate Judge's recommendation has no presumptive
weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The Court must conduct a de novo review
of those portions of the R & R to which specific
objections are made, and it 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); Fed. R. Civ. 72(b).
Court must engage in a de novo review of every portion of the
Magistrate Judge's report to which objections have been
filed. Id. However, the Court need not conduct a de
novo review when a party makes only “general and
conclusory objections that do not direct the [C]ourt to a
specific error in the [M]agistrate [Judge]'s proposed
findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of specific objections to the R & R, the Court reviews
only for clear error, Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the
Court need not give any explanation for adopting the
Magistrate Judge's recommendation. Camby v.
Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).
presently detained at the Greenville County Detention Center
on state charges,  filed a § 1983 complaint alleging he
“was standing up reading my law book” when
Defendant John Couch (who appears to be an officer at the
jail) called him by a racial slur and told him to “sit
down and shut up before I kill you.” ECF No. 1 at pp.
5-6. Besides Couch, Plaintiff has named John Vandermosten,
NFN Bodiford, and the Greenville County Council as
defendants. Id. at pp. 1-3. The Magistrate Judge
recommends summarily dismissing Plaintiff's complaint
because it (1) fails to state a First Amendment retaliation
claim and (2) fails to provide sufficient factual allegations
subjecting Defendants Vandermosten, Bodiford, and Greenville
County Council to personal or supervisory liability.
See R & R at pp. 3-5. The Magistrate Judge also
notes Defendant Greenville County Council is not a
“person” for purposes of 42 U.S.C. § 1983.
Id. at pp. 4-5 n.1. Plaintiff has filed objections
to the R & R. See Pl.'s Objs. [ECF No. 15].
Plaintiff objects to the dismissal of Defendant Greenville
County Council. See Pl.'s Objs. at pp. 1-2, 4.
However, as the Magistrate Judge found and the Court has
previously ruled, “Greenville County Council is not a
proper defendant for purposes of § 1983.”
Workman v. Vandermosten, No. 6:17-cv-00766-RBH-KFM,
2017 WL 4776717, at *2 (D.S.C. Oct. 23, 2017), appeal
dismissed, No. 17-7584, 2018 WL 1603116 (4th Cir. Apr.
3, 2018). See, e.g., Crouchman v. Pickens Cty.
Council, No. 9:16-cv-00804-CMC, 2017 WL 767185, at *9
(D.S.C. Feb. 3, 2017), adopted by, 2017 WL 749393
(D.S.C. Feb. 27, 2017) (finding the Pickens County Council
was not a proper § 1983 defendant and explaining a
“group of people or use of such collective terms to
name a § 1983 defendant has been found improper and
inadequate” (internal quotation marks omitted));
Hodges v. Mayor & City Council of Annapolis,
2016 WL 4140954, at *3 (D. Md. Aug. 3, 2016) (recognizing
“a county council is not sui juris”).
See also Dunbar v. Metts, No. 2:10-cv-01775-HMH-BHH,
2011 WL 1480279, at *5 (D.S.C. Mar. 31, 2011), adopted
by, 2011 WL 1480096 (D.S.C. Apr. 19, 2011)
(“Lexington City Council is not a ‘person'
and is not responsible for the alleged violations of
Plaintiff's rights.”); Smith-Berch, Inc. v.
Baltimore Cty., 68 F.Supp.2d 602, 626-27 & n.1 (D.
Md. 1999) (finding the Baltimore County Council was not a
“person” within the meaning of § 1983).
Plaintiff indicates in his objections that he is attempting
to assert a municipal liability claim, as he cites cases
discussing Monell v. Department of Social Services of
City of New York, 436 U.S. 658 (1978). See
Pl.'s Objs. at pp. 1-2. Under Monell,
“municipalities and other local government units”
(such as cities and counties) can be liable under § 1983
if an official policy or custom causes a deprivation of
constitutional rights. See 436 U.S. at 690-91.
However, to the extent Plaintiff has attempted to sue
Greenville County, such a claim is foreclosed by the fact
“that, under South Carolina law, it is the Sheriff of
the County who is responsible for the operation of county
detention centers, not the County.” Crouchman,
2017 WL 767185, at *9 (citing S.C. Code Ann. § 24-5-10).
As such, the sheriff of Greenville County-not Greenville
County or its individual county council members-is
responsible for operating the Greenville County Detention
Center where Plaintiff is detained. Plaintiff has made no
allegations calling into question the existence and
applicability of this state law to his claims. See Cobb
v. South Carolina, No. 2:13-CV-02370-RMG, 2014 WL
4220423, at *2, 7 (D.S.C. Aug. 25, 2014) (summarizing Fourth
Circuit and South Carolina law holding that because the
county has no control over the operations or policy of the
jail, it cannot be held liable for events that take place
there). Accordingly, the Court will dismiss Defendant
Greenville County Council.
Plaintiff objects to the dismissal of Defendants Vandermosten
and Bodiford. See Pl.'s Objs. at pp. 2-4.
However, as the Magistrate Judge correctly explains,
Plaintiff fails to provide sufficient factual allegations
subjecting either defendant to personal or supervisory
liability. See R & R at pp. 4-5. Accordingly,
the Court will dismiss Defendants Vandermosten and Bodiford.
Plaintiff objects to the Magistrate Judge's conclusion
that he fails to state a First Amendment retaliation claim.
See Pl.'s Objs. at pp. 3-4. “In order to
state a colorable retaliation claim under Section 1983, a
plaintiff must allege that (1) he engaged in protected First
Amendment activity, (2) the defendant took some action that
adversely affected his First Amendment rights, and (3) there
was a causal relationship between his protected activity and
the defendant's conduct.” Martin v. Duffy,
858 F.3d 239, 249 (4th Cir. 2017) (internal quotation marks
and alterations omitted). Although Plaintiff alleges
Defendant Couch called him by a racial slur and threatened to
kill him, “mere threats or verbal abuse, without more,
do not state a cognizable claim under § 1983.”
Wilson v. McKeller, 254 Fed.Appx. 960, 961 (4th Cir.
2007) (involving a racial slur); see also Morrison v.
Martin, 755 F.Supp. 683, 687 (E.D. N.C. ) (“The
law is clear that [m]ere threatening language and gestures of
a custodial officer do not, even if true, amount to
constitutional violations.”), aff'd, 917
F.2d 1302 (4th Cir. 1990). Accordingly, the Court will
dismiss Defendant Couch.
the Court notes that before entering the R & R, the
Magistrate Judge issued an order informing Plaintiff that his
complaint contained deficiencies that could subject it to
summary dismissal, providing him fourteen days to file an
amended complaint, and notifying him that failure to file an
amended complaint would result in a recommendation of
dismissal. See ECF No. 8. However, Plaintiff never filed an
amended complaint, and he does not specifically object to the
Magistrate Judge's additional recommendation in the R
& R that this action be dismissed for failure to comply
with a court order. See R & R at p. 1.
Accordingly, the Court will also dismiss this action without
prejudice pursuant to Federal Rule of Civil Procedure
foregoing reasons, the Court overrules Plaintiff's
objections, adopts the R & R [ECF No. 13], and
DISMISSES this action without prejudice