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Spellman v. Mascio

United States District Court, D. South Carolina

April 19, 2018

Reginald Spellman, Plaintiff,
v.
Alice Mascio, South Carolina Department of Corrections Visitation Coordinator, Defendant.

          REPORT AND RECOMMENDATION

          BRISTOW MARCHANT UNITED STATES MAGISTRATE JUDGE.

         This pro se case was removed to this Court by the Defendant on August 20, 2017. Prior to that time, the case had been pending in state court since August 26, 2015. The Defendant removed this case after Plaintiff filed a document titled "Amendment" on August 29, 2017 in which he stated that the Defendant's restriction of his visitation privileges violated his Fourteenth Amendment rights. Prior to that time, Plaintiffs claims (which he continues to also assert) only alleged violations of state law.

         On March 9, 2018, the Defendant filed a motion for summary judgment, seeking dismissal of Plaintiff s federal claim.[1] As the Plaintiff is proceeding pro se, a Roseboro Order was entered by the Court on March 12, 2018, advising Plaintiff of the importance of a dispositive motion and of the need for him to file an adequate response. Plaintiff was specifically advised that if he failed to file a properly supported response, the Defendant's motion may be granted. However, notwithstanding the specific warning and instructions as set forth in the Court's Roseboro order, the Plaintiff has failed to respond to the motion other than to file a "motion for trial". Plaintiff further asks in his "motion" that this Court only address the "amended" portions of his claim in issuing any order, and that his original claims be transferred "back to the state court for Judge Cooper to rule upon

         Defendant argues in her motion, inter alia, that Plaintiffs federal visitation claim should be dismissed as moot, because Plaintiff only requested injunctive relief and he has now been released and is no long in custody. A review of Plaintiff s amendment confirms that he only seeks declaratory or injunctive relief with respect to this claim. See Court Docket No. 1-1, pp. 85-89. Therefore, the undersigned agrees with the Defendant that this claim should be dismissed. See Incumaa v. Ozmint, 507 F.3d 281, 287 (4th Cir. 2007) ["Once an inmate is removed from the environment in which he is subjected to the challenged policy or practice, absent a claim for damages, he no longer has a legally cognizable interest in a judicial decision on the merits of his claim"], cert, denied, 128 S.Ct. 2056 (2008); see also Williams v. Griffith, 952 F.2d 820 (4th Cir. 1991).

         Conclusion

         Based on the foregoing, it is recommended that the Defendant's motion for summary judgment be granted, and that Plaintiffs federal claim challenging the prison's visitation policy be dismissed. Plaintiffs remaining state law claims should then be remanded back to state court for disposition. Mills, 709 F.Supp. at 675-676.

         The parties are referred to the Notice Page attached hereto.

         Notice of Right to File Objections to Report and Recommendation

         The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Ace. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

         Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk United States District Court Post Office Box 835 Charleston, South Carolina 29402

         Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Am, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).

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