United States District Court, D. South Carolina, Greenville Division
ORDER ADOPTING THE REPORT AND RECOMMENDATION AND
DISMISSING THE COMPLAINT WITHOUT PREJUDICE AND WITHOUT
ISSUANCE AND SERVICE OF PROCESS
GEIGER LEWIS UNITED STATES DISTRICT JUDGE.
action arises under 42 U.S.C. § 1983. Plaintiff is
proceeding pro se. The matter is before the Court for review
of the Report and Recommendation (Report) of the United
States Magistrate Judge suggesting the Court dismiss the
amended complaint without prejudice and without issuance and
service of process and grant in part and deny in part the
motion to dismiss of Defendants J.M. Cutler (Cutler) and
Kennith Miller (Miller). The Report was made in accordance
with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the
District of South Carolina.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270 (1976).
The Court is charged with making a de novo determination of
those 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. §
Magistrate Judge previously issued a Report and
Recommendation on March 29, 2017, suggesting the Court
dismiss Plaintiff's original complaint without prejudice
and without issuance and service of process. ECF No. 13. The
Court issued an Order adopting the March 2017 Report and
summarily dismissing the original complaint, ECF No. 17,
which Plaintiff appealed, ECF No. 20. The United States Court
of Appeals for the Fourth Circuit dismissed Plaintiff's
appeal for lack of jurisdiction but remanded the case with
instructions to allow Plaintiff to file an amended complaint.
ECF No. 26.
remand, the Magistrate Judge provided an opportunity for
Plaintiff to amend his complaint, ECF No. 29, and Plaintiff
filed an amended complaint on September 13, 2017, ECF No. 38.
On September 25, 2017, Defendants Cutler and Miller filed
their motion to dismiss the amended complaint. ECF No. 41.
Thereafter, Plaintiff filed two motions to strike. ECF Nos.
Magistrate Judge filed the pending Report regarding
Plaintiff's amended complaint on March 26, 2018. ECF No.
53. On April 11, 2018, the Clerk of Court filed
Plaintiff's purported objections to the Report
(Plaintiff's Memorandum). ECF No. 55. Defendants Cutler
and Miller replied to Plaintiff's Memorandum on April 25,
2018. ECF No. 57.
28 U.S.C. § 636(b)(1), a district court is required to
conduct a de novo review of those portions of the Magistrate
Judge's Report to which a specific objection has been
made. The Court need not conduct a de novo review, however,
“when a party makes general and conclusory objections
that do not direct the court to a specific error in the
[Magistrate Judge's] proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982); see Fed. R. Civ. P. 72(b).
Consequently, the Court need not-and will not-address any of
Plaintiff's arguments that fail to point the Court to
alleged specific errors the Magistrate Judge made in the
document filed pro se is ‘to be liberally
construed.'” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)). Courts are not, however, required to
“conjure up questions never squarely presented to
them” or seek out arguments for a party. Beaudett
v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
when construed liberally and in the light most favorable to
Plaintiff, Plaintiff's Memorandum fails to set forth any
specific objections to the Report. Plaintiff's Memorandum
is rambling and disjointed. Plaintiff repeatedly asserts he
objects to various portions of the Report, but his assertions
are conclusory and unsupported by any coherent explanation.
Plaintiff also reiterates allegations from his original and
amended complaints and purports to move for various sanctions
against some of the Defendants. Any meaningful counter to the
well-reasoned conclusions in the Report is absent. Because
Plaintiff's Memorandum fails to articulate any specific
objection to the Report, the Court need not-and will
not-address its content further.
overabundance of caution, however, the Court has made a de
novo review of the entire record. After having done so, the
Court is convinced the amended complaint should be summarily
dismissed. The Court notes Plaintiff has already been given
an opportunity to amend his complaint, and the Court is of
the opinion providing Plaintiff with any additional
opportunities to amend would be futile.
thorough review of the Report and the record in this case
pursuant to the standard set forth above, the Court adopts
the Report and incorporates it herein to the extent it is not
contradicted by this Order. Therefore, it is the judgment of
the Court Plaintiff's amended complaint is
DISMISSED WITHOUT PREJUDICE and without
issuance and service of process. Defendant Cutler and
Miller's motion to dismiss and Plaintiff's motions to
strike are RENDERED MOOT by this Order.
IS SO ORDERED.
OF RIGHT TO APPEAL
parties are hereby notified of the right to appeal this Order
within thirty days from the date hereof, pursuant to Rules 3